State v. Keeland

• Decision Date: 22 October 1909
• Citation: 104 P. 513,39 Mont. 506
• Parties: STATE v. KEELAND et al.
• Court: Montana Supreme Court

104 P. 513

39 Mont. 506

STATE v. KEELAND et al.

Supreme Court of Montana

October 22, 1909

Appeal from District Court, Custer County; C. H. Loud, Judge.

Henry J. Keeland and another were convicted of grand larceny, and appeal. Reversed and remanded.

C. C Hurley and Geo. W. Farr, for appellants.

Albert J. Galen, Atty. Gen., and W. L. Murphy, Asst. Atty. Gen., for the State.

BRANTLY C.J.

The defendants were convicted of the crime of grand larceny alleged to have been committed by them in Dawson county, by feloniously stealing, taking, leading, and driving away three heifers, of the value of $40, the property of Charles F Bean. The animals are described as branded "7L" on the left ribs and having a "swallow fork" in both ears. These appeals are from the judgment and an order denying their motion for a new trial.

First it is contended that the evidence is insufficient to justify the verdict, in that there is no proof of the corpus delicti--in other words, it is not shown that the heifers were the property of Charles F. Bean and that the defendants stole them while alive; and, second, that the larceny, if committed, was committed in Dawson county. The evidence introduced by the state shows the following: Charles F. Bean resides in Dawson county, on East Redwater creek, about 60 miles north of Glendive, and is the owner of cattle which roam on the neighboring range. On October 1, 1908, one Ernest Bottins was out upon the range in that vicinity, hunting cattle. He was accompanied by Sylvanus Bean, a son of Charles F. Bean. After riding for some time Bean left Bottins, intending to return home for a fresh horse. Soon after they parted, Bottins discovered some fresh dressed beef concealed in the brush in a coulee. There were three whole carcasses, with the hides and heads. The carcasses had each been cut across into two pieces, so as to leave the fore and hind quarters together. They were lying upon the hides, which had also been cut across from side to side. Judging by the absence of offal and the appearance of the surroundings, the animals had been killed and dressed at some other place, and the beef afterwards concealed in the coulee. As shown by the udders left on the hides, they were all heifers. Upon noticing the earmarks, Bottins went in search of Bean. Having found and informed him of what he had discovered, Bottins went to bring a stock inspector and deputy sheriff named Bartley who resided nearby. Bean went home, got his rifle, rode to where the beef was lying, and, after examining the brand and earmarks and finding them to be those used by his father, concealed himself in the brush and watched to ascertain who, if any one, came to take the beef away. While he was there, three hunters, all of whom he knew, passed up the coulee, but apparently did not see the beef or know anything about it until, upon their presently returning, he called their attention to it. They then passed on, leaving him on watch. About an hour and a half later the two defendants drove up along the coulee in a lumber wagon. Upon arriving at a point opposite where the beef was concealed, they stopped, and, after some conversation as to whether it was flyblown or not, began to load it into the wagon. Thereupon Bean came out of his place of concealment and arrested them. The part of his testimony detailing what was said by defendants after the arrest is the following: "Q. After the time the team was unhitched, or during this time that the team was being unhitched, did Keeland make any statement to you? A. Mr. Keeland made a statement to me relative to the killing of this beef at the time the two defendants were there. Q. You may give that conversation now. A. He said he would not have done it if I had not knocked him down here in town. Q. What further statements, if any, did he make along this same line? A. He offered me $100 to let him go. *** He offered me $100 to try and hush it up and let him go. Q. Now, Mr. Bean, state as near as you can, if you remember Mr. Keeland's exact words. A. He says: 'I will give you $100 if you will drop this or let him (Keeland) out of it.' I don't just remember his exact words; but it was to that effect as near as I can remember. Q. Did he make you any other proposition at that time? A. Yes, sir. Q. State as near as you can in his words. A. He said he would let me have his place for $200, which was less than it was worth, and he would quit the country here and would not bother me any more; that he would leave the country if I would let him go. A. Did he make any statement to you relative to the killing of other cattle of your father's? A. Yes, sir. He said that that was the first of ours that he had killed. *** Q. Now tell the jury, as near as you can, Mr. Randerhoff's words. A. Mr. Randerhoff made a statement to me. *** Q. Now will you state as near as you can his words? A. Mr. Keeland was asking me to settle it, and Mr. Randerhoff said: 'You had better settle it with him.' He says: 'Think of his family. If you push this, it would leave them in bad shape,' something to that effect. He said to let Keeland go and take him on. He did not make any statement to me that he was to blame." The witness subsequently stated that he and Keeland had had a difficulty in Glendive a few days before, and that he had knocked Keeland down.

The ranch house of the Beans is about four miles from the point where the beef was concealed; that of Keeland, where Randerhoff was staying and at work for Keeland, is about one mile in the opposite direction, near the coulee below. A public road crosses the coulee about 50 yards above, and another further down near the Keeland house. At the time of the arrest a single wagon track was observed by both Bottins and Sylvanus Bean. From the tracks of the horses attached to it, it appeared to have been made by some on driving out from the upper road and following the coulee down by the place where the beef was found, in the direction of the Keeland house. It was not followed by either witness for more than 100 yards below. Bean took the defendants from the place of the arrest to a ranch house nearby, owned by one Day, leaving their team behind. Having obtained saddle horses, the three returned accompanied by Leo Brown, whom they found at the Day house. They loaded the beef, the hides, and the heads into the wagon, and then went to the Bean house. They all remained there that night. On the next morning the defendants were taken to Glendive by Bartley, the deputy sheriff, who had come for that purpose at the request of Bottins, and were held for trial. The portion of the hides showing the brand together with the earmarks, were preserved by the sheriff, and were introduced at the trial. The beef was also taken to Glendive and exhibited to the sheriff and Sylvanus Bean, who was at Glendive at the time of the arrest. On the way from the Day house to the place of arrest, Brown and Keeland rode together some distance behind Bean and Randerhoff. Being questioned as to a statement then made by Keeland, Brown testified: "Mr. Keeland said he was in a little jackpot, and would like to have me talk to Mr. Bean and get him to settle it. That is all he said." This was in reply to an inquiry of him by the witness as to what the trouble was. At another place in his testimony he stated: "When we got down to the Bean ranch, Keeland, Randerhoff, and I waited outside a few minutes, and Mr. Bean went down to the house. Keeland called me off to one side. I don't think Randerhoff was close enough to hear. *** The earmarks are on the heads and the brands are on the hides, and he said he would give me 50 plunks if I would let him cut the brands and the earmarks off of the heads and hides. By 50 plunks I understood him to mean $50. I told him I would not do it; that it would be showing neither of them a fair deal." Bartley testified to a statement made to him by Keeland while they were on the way to Glendive, as follows: "We had dinner at Clemon's place, and Keeland and I had some conversation there. I think Randerhoff heard our conversation. The remark he made to me was that he and Doc had been good friends, and he did not see why Doc did not give him the tip 'before he went after me,' and I said I didn't know why he did not give him the tip. He said he and Doc had always been good friends. Palmer lives close to him. I left the impression on his mind that Palmer came after me. At the same time he said something to me about his bond. *** He says: 'When I get to town, I will...