State v. Kingen

• Decision Date: 26 July 1929
• Docket Number: Cr. No. 25.
• Citation: 226 N.W. 505,58 N.D. 327
• Parties: STATE v. KINGEN.
• Court: North Dakota Supreme Court

58 N.D. 327

226 N.W. 505

STATE

v.KINGEN.

Cr. No. 25.

Supreme Court of North Dakota.

July 26, 1929.

Syllabus by the Court.

Upon appeal from a judgment of conviction of petit larceny, the evidence is examined, and held sufficient to support the judgment both as to the theft and as to the venue of the crime.

The term “cruel,” as applied to punishment for a crime, refers to the form of the punishment, and the term “unusual” refers to its frequency.

Section 9918a of the 1925 Supplement to the Compiled Laws of 1913, which authorizes the imposition of a more severe penalty on one convicted of the larceny of poultry and live stock, does not contravene section 6 of article 1 of the State Constitution, prohibiting the infliction of cruel or unusual punishments.

Section 9918a of the 1925 Supplement to the Compiled Laws of 1913 does not create a separate offense, and where one is convicted of larceny of property of the character of that referred to in the statute, the penalty provided by that statute may be imposed.

It is not a prerequisite to the infliction of the penalty provided in section 9918a of the 1925 Supplement to the Compiled Laws of 1913 that the information should make reference to the statute authorizing it.

Appeal from District Court, Billings County; H. L. Berry, Judge.

George Kingen was convicted of petit larceny of horses, and he appeals. Affirmed.Keohane & Kuhfeld, of Beach, for appellant.

W. C. Crawford, of Dickinson, and W. J. Ray, State's Atty., of Medora, for the State.

BIRDZELL, J.

George Kingen was convicted of the crime of petit larceny in the district court of Slope county, where the case was tried on a change of venue from Billings county. He appeals from the judgment of conviction. The information charges grand larceny of horses, which are specifically described as two mares and two yearling colts, the property of Charles Wolf. The evidence shows that the ranch of the complaining witness is located about three miles east of the boundary line between Billings and Golden Valley counties and that that of the defendant lies just west of the boundary in Golden Valley county; his house being situated about three quarters of a mile from the boundary line and a little north of the main line of the Northern Pacific Railroad and of United States Highway No. 10, while the ranch of the complaining witness lies south of the highway and of the railroad. In the late summer of 1927, Wolf turned the two mares in question with their colts out to range. Their accustomed feeding grounds and watering places were in the immediate vicinity of the owner's ranch, and during the fall and winter they continued to range in that locality. In the spring they were missed and were finally located upon the ranch of the defendant. When found the colts were seen to have been recently branded, and when the animals were released from the defendant's inclosure they returned directly to their home ranch.

The appellant challenges the sufficiency of the evidence to sustain the verdict, and particularly its sufficiency to establish that the offense, if any, was committed in Billings county. He further urges that the statute under which the penitentiary sentence was imposed, following a verdict of guilty of petit larceny, is unconstitutional, and that in any event the defendant was prosecuted under the general larceny statute, section 9913 of the Compiled Laws of 1913, and could not legally be sentenced under chapter 156 of the Session Laws of 1925.

[1] The evidence shows, not only that the horses in question were accustomed to ranging within a short distance from their home ranch and that they had been missing from their accustomed range for a considerable period of time, but that they were confined within the defendant's inclosure. They were in his possession. Possession not satisfactorily explained is an evidentiary fact from which the crime of larceny may be inferred. State v. Rosencrans, 9 N. D. 163, 82 N. W. 422;State v. Ross, 46 N. D. 167, 179 N. W. 993;State v. Lennick, 47 N. D. 393, 182 N. W. 458. Upon the trial evidence was offered to explain the presence of the horses on the defendant's premises. It was shown that early in March several ranchers were engaged in a round-up for the purpose of taking up their horses that were feeding on the range in the vicinity of the defendant's ranch. They were engaged at this for several days and used the defendant's place as their headquarters. Some of these ranchers gave evidence tending to identify the horses in question as having been brought to the defendant's place by them during the round-up. In view of the fact that the defendant's brand was placed on the colts later than this and of the further fact that the animals were shown to have been disposed to return immediately to their home ranch upon being released from the inclosure, the sufficiency of the explanation of their continued possession by the defendant was clearly a matter for the consideration of the jury. But, in addition to this, there is evidence that immediately after Wolf found the horses upon the defendant's premises the defendant claimed title through a bill of sale. On the trial he did not deny having made such a claim, but he no longer asserted ownership. As a witness he likewise gave an explanation of the branding...