State v. Hussey
| Decision Date | 11 December 1936 |
| Docket Number | 26273. |
| Citation | 188 Wash. 454,62 P.2d 1350 |
| Court | Washington Supreme Court |
| Parties | STATE v. HUSSEY. |
Department 2.
Appeal from Superior Court, Grant County; C. G. Jeffers, Judge.
Arthur Hussey was convicted for grand larceny of steers, and he appeals.
Affirmed.
E. K. Brown, of Ellensburg, for appellant.
E. W Schwellenbach, of Ephrata, for the State.
On an information duly filed in the superior court of Washington for Grant county, appellant was charged with the crime of grand larceny in that he did in Grant county, Wash., on or about September 11, 1935, then and there unlawfully and feloniously, with intent to deprive and defraud the owner thereof, take, lead, and drive away 7 steers, the property of one George Drumheller, of the approximate value of $330.75.
After a plea of not guilty, appellant was tried by a jury in that county and found guilty as charged. A motion in arrest of judgment and a motion for a new trial were made and denied. Thereupon, judgment and sentence were pronounced against him from which he appeals.
Since 1904 Drumheller has owned and operated a ranch of approximately 25,000 acres, of which 17,000 acres are in the southeasterly part of Grant county and about 8,000 acres in the northwesterly portion of Adams county, on which he raises graded Hereford and Shorthorn cattle; the headquarters of the ranch being in section 4, township 17 north, range 28, in Grant county. All of the cattle are branded with a 'railroad brand,' which consists of two parallel, vertical lines placed on the left hip, and is usually done in June. In addition, the left ears are cropped. This brand has been filed with the county auditor of Grant county and also with the state division of dairy and livestock.
In the spring the cattle are turned off of the two feed lots, which are inclosed, on to the open land. In 1935 the spring roundup began about May 23 and the cattle, including 640 steers, were kept in the pasture until July 4, the cows being turned out from section 14, township 17 north, range 28, and the steers from section 28, township 18 north, range 28, all in Grant county. The steers had been kept separate and had been raised in what was called the sand hills or potholes and, when turned out, about 7 miles north of the Adams county line went west and north.
In the fall of 1935 Drumheller made arrangements to sell 650 steers and 169 cows to Hansen, Sharp, and Dunnington of Ellensburg, but could only find 605 steers (yearlings, two years old and three years old), which included 4 steers later found in Adams county by Whitehead, a rider for Drumheller, when the first delivery was made October 6.
In 1932 Drumheller sold 180 steers to one Colvin on the John Day river, about 100 miles southwest of Pendleton, Ore., but did not sell, give away, or dispose of any cattle during 1933 and 1934. Prior to September 1, 1935, Drumheller had not sold, given away, or consented to any one taking any steers, nor had Perry, his foreman, nor had he ever sold any steers to appellant.
Appellant lives in Kent, King county, but since 1930 has been running a small horse ranch in Grant county in section 30, township 19 north, range 26, which is only 22 miles, by section lines, from the headquarters of the Drumheller ranch.
The evidence was palpably conflicting, but there was ample and competent testimony to prove to the satisfaction of the jury that the 7 steers described in the information were taken from the range in Grant county.
Among witnesses produced by appellant was one Sieler, who the jury were entitled to believe was credible, who testified that, in looking for 170 head of his own cattle which had strayed, he passed through the Adams county part of the Drumheller ranch a number of times after the roundup in 1935 and that he only saw 4 Drumheller steers in Adams county, which were evidently the ones found by Whitehead and delivered to the Ellensburg buyers.
We agree with counsel for appellant that we are not here concerned with the rule that, where a crime has been committed partly in one county and partly in another, the jurisdiction may be laid in either county; nor with the rule that crimes committed within 100 rods of the boundary line of two counties may be prosecuted in either county.
Appellant cites Rem.Rev.Stat. § 2012, to the effect that, except as otherwise specifically provided by statute, all criminal actions shall be commenced and tried in the county where the offense was committed, and section 22, art. 1, Washington Constitution (see Tenth Amendment), providing that in all criminal prosecutions the accused shall have the right to speedy trial by an impartial jury of the county in which the offense is alleged to have been committed.
That was the procedure followed here. Neither the statutory nor the constitutional provision has in any way been violated in this prosecution. The State did not fail to prove venue, as stated in the information, in Grant county, although there was no direct testimony that the cattle were taken from Grant county under our rule as announced in State v. Kincaid, 69 Wash. 273, 124 P. 684; State v. Dooley, 82 Wash. 483, 144 P. 654; State v. Williams, 124 Wash. 160, 213 P. 921. See, also, State v. Uren, 39 S.D. 15, 162 N.W. 745.
On September 6, 1935, appellant delivered 7 live head of cattle to one Ey, a butcher and packer, at Auburn, Wash. The State provied that the 7 steers, described in the information, were, on September 11, 1935, also delivered alive in a truck to Ey and that both loads of animals had the railroad brand. In October the Grant county sheriff went to the Ey feed lot, where he found a lame steer bearing the same brand. After the steer was butchered, the sheriff procured and preserved the hide.
Appellant made the flimsy defense, which was evidently disbelieved by the jury, that he had purchased two lots of cattle from a man named Reese, whom he had previously known in the Willapa Harbor country, probably a confederate, from whom he used the well-known device, to make a showing of title, of obtaining a bill of sale for the 12 steers and 2 cows, which was acknowledged Before a notary public in Auburn. This notary public did not know Reese, had never seen him Before , never saw him afterwards, and he was not produced at the trial in defense of appellant.
The live cattle sold by appellant to Ey were thus shown to have...
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