State v. Kaiser, 5438

• Decision Date: 16 May 1930
• Docket Number: 5438
• Citation: 288 P. 154,49 Idaho 351
• Parties: STATE, Respondent, v. NICK KAISER and EMARY ARVOLD, Appellants
• Court: Idaho Supreme Court

288 P. 154

49 Idaho 351

STATE, Respondent, v. NICK KAISER and EMARY ARVOLD, Appellants

No. 5438

Supreme Court of Idaho

May 16, 1930

CRIMINAL LAW-LARCENY-SEARCH-WARRANT-OWNERSHIP, EVIDENCE OF-PROOF OF WANT OF CONSENT.

1. Refusal to suppress officers' testimony as to identity of cattle, found on search of defendants' premises without warrant or permission, held not prejudicial error, in view of other competent proof thereof.

2. Motion to suppress officer's testimony in trial for stealing calf as to finding calf head and carcass on search of defendant's premises with his permission, though without warrant, held propperly overruled.

3. Evidence, in trial for stealing calf, held sufficient to show ownership thereof by person alleged.

4. Evidence held sufficient to take to jury question whether defendants feloniously took calf without owner's consent though neither owner nor her sons so testified.

5. Want of owner's consent to taking of property is necessary element of larceny.

6. Want of owner's consent to taking of property may be proven by circumstantial evidence in trial for larceny.

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. Ralph W. Adair, Judge.

Defendants were convicted of the crime of grand larceny. Affirmed.

Affirmed.

Solon B. Clark and Tyler & Christensen, for Appellants.

Officers seeking to use evidence obtained in the search of the home or close of a person must show (and the burden is on the state) that the search was conducted by virtue of a legal search-warrant or as incidental to a legal arrest, or that they had probable cause to believe that a felony had been committed; and the evidence introduced at the hearing upon the motion shows the contrary. (State v. Arregui, 44 Idaho 43, 52 A. L. R. 463, 254 P. 788.)

The evidence is insufficient to sustain the verdict and judgment for the reason that the state failed to prove that Anna Gini was the owner of the animal in question on the date of the alleged commission of the crime.

There is not the slightest scintilla of evidence that Anna Gini owned the animal at any time after the first of June, 1928 when she parted with the actual physical possession of the animal. (State v. Hurst, 36 Idaho 156, 209 P. 724; State v. Platts, 31 Idaho 19, 168 P. 1143; 22 C. J. 3, sec. 53; 16 C. J. 541, last paragraph sec. 123; State v. Harris, 166 N.C. 243, 80 S.E. 1067; Perry v. State, 44 Neb. 414, 63 N.W. 26.)

The failure of consent on the part of the owner cannot be proven by any other evidence save that of the owner, unless the owner cannot be produced at the trial. In this case Anna Gini's name was indorsed upon the information and no explanation was made on the part of the state to justify their failure to call her; Mike Gini and Andrew Gini, her sons, and, as they testified, her agents, did not even testify that they or she did not consent to the taking. (Perry v. State, supra; 22 C. J. 3, sec. 53; 16 C. J. 541.)

W. D. Gillis, Attorney General, and Fred J. Babcock, Assistant Attorney General, for Respondent.

The search of the premises was incident to a lawful arrest and was conducted with the consent and approval of one of the defendants. (C. S., sec. 8726; State v. Myers, 36 Idaho 396, 211 P. 440; People v. Wilson, 117 Cal. 688, 49 P. 1054; State v. Arregui, 44 Idaho 43, 52 A. L. R. 463, 254 P. 788.)

The want of consent of the owner to the taking of his property alleged to have been stolen may be proven by facts and circumstances which sufficiently show that the property was feloniously taken. (State v. Jones, 119 Ore. 320, 249 P. 360; State v. Wong Quong, 27 Wash. 93, 67 P. 355; Jackson v. State, 10 Okla. Cr. 525, 139 P. 324, 325; Devore v. State, 33 Okla. Cr. 403, 243 P. 999; Coffey v. State, 29 Okla. Cr. 168, 232 P. 968.)

LEE, J. Budge, Varian and McNaughton, JJ., concur. Givens, C. J., took no part in the decision.

OPINION

LEE, J.

Defendants and appellants, Nick Kaiser and Emary Arvold, were convicted of the crime of grand larceny, consisting of the theft of a steer calf belonging to one Anna Gini, and were duly sentenced to a term of from one to fourteen years. From the judgment, they have appealed, assigning insufficiency of the evidence and the action of the trial court in denying their motion to suppress certain evidence, and refusing their request for an advisory instruction to acquit.

The motion to suppress was timely made, on the ground that the premises of the defendants were searched without a search-warrant, warrant of arrest or as incident to a legal arrest, thereby violating defendants' constitutional rights as to immunity from unreasonable searches and seizures, and being compelled to testify against themselves. The evidence shows that the prosecuting attorney and deputy sheriff of Custer county, with two others, visited defendants' premises, without their knowledge or permission, about 11 o'clock on the night of November 6, 1928, and examined three head of cattle in defendants' corral. They had no search-warrant or warrant of arrest, nor did they make an arrest that night. They returned to the ranch about 3 o'clock in the afternoon of November 9, 1928, and placed defendant Arvold under arrest. At this time the deputy sheriff asked permission to "look around the premises" and received Arvold's permission to do so. During the ensuing search the officers found a calf head behind a board gate, a dressed calf carcass in the barn, a rifle from which they extracted a fired shell, and tracks leading from the place of slaughter to where the calf head was found and others going down Garden Creek.

Conceding, for the purpose of argument, without deciding, that that part of the motion as to the evidence secured on the night of November 6th should have been sustained, this testimony consisted of nothing more or less than an identification of the cattle found there that night, and as other competent proof of the identity of the calf in question was subsequently offered, no prejudice resulted to the defendants. The motion as to the evidence gleaned from the search on the ninth was properly overruled. It was made with defendant Arvold's permission, which removes every trace of unreasonableness, the only thing inhibited by the Constitutions of both the United States and the state of Idaho. Permission was voluntarily given.

Appellants next contend that the evidence is insufficient to support the verdict, as the ownership of the calf in question, on the date of the alleged crime, is not shown, nor is the nonconsent of the owner to the killing shown.

On the question of ownership, the state called Andrew and Mike Gini, sons of Anna Gini, whose name was indorsed upon the information as the owner. They testified that they managed their mother's ranch and cattle, and positively identified the skin of a calf head introduced in evidence as that of a calf owned by their mother. This skin was identified by several witnesses as that taken from the head found in defendant's corral. Defendants contend that this is not sufficient to prove ownership of the calf on the date of the alleged crime. Mrs. Gini was not called as a witness. It is apparent that the sons were far better qualified to identify the calf than Mrs. Gini. Both testified that their mother owned the calf in question on the 9th of November; vide the following testimony:

Mike Gini: "Q. The day you saw the cow on the 10th of November did you see any calf following the cow? A. No.

"Q. Did you see the head of a calf that day, or about that time? A. Yes. ....

"Q. Do you know to whom that calf belonged; who owned the calf? A. My mother."

Andrew Gini: "Q. Was there a calf following this cow when you saw it in the Bradbury field? A. No, sir, there wasn't.

"Q. Did you see the head of a calf? A. Yes. ....

"Q. Did you recognize what calf that head was taken from? A. Yes, I did. ....

"Q. Do you know who owned that calf? A. My mother."

He had just testified that he had seen a cow, owned by his mother,...