State v. Klein

• Decision Date: 04 January 1917
• Docket Number: 13510.
• Citation: 94 Wash. 212,162 P. 52
• Parties: STATE v. KLEIN.
• Court: Washington Supreme Court

162 P. 52

94 Wash. 212

STATE v. KLEIN.

No. 13510.

Supreme Court of Washington

January 4, 1917

Department 1. Appeal from Superior Court, Yakima County; E. B. Preble Judge.

G. C Klein was convicted of encouraging, inducing, hiring, and procuring certain persons to drive away steers belonging to another with intent to deprive and defraud the owner thereof and he appeals. Affirmed.

H. J. Snively, of North Yakima, for appellant.

Harold B. Gilbert and Sydney Livesey, both of North Yakima, for the State.

ELLIS J.

Defendant by the jury, was found guilty upon an information charging, in substance, that, on or about June 10, 1914, he encouraged, advised, induced, hired, aided, assisted, abetted and procured one Charles Matney and one George Yeager to take, lead, and drive away two steers belonging to another, with intent to deprive and defraud the owner thereof, by reason whereof Charles Matney and George Yeager, on or about that date, did take, lead, and drive away two steers, each weighing about 1,500 pounds, each of a value of about $125, and each being the property of the Pacific Cold Storage Company, a corporation, and further charging him with buying and receiving such steers from Matney and Yeager knowing them to have been stolen. We shall not quote the lengthy information. It will suffice to say that it charged defendant with larceny as an accessory before the fact, under subdivision 1, Rem. & Bal. Code, § 2601, and with buying and receiving the stolen property with knowledge of the theft, under subdivision 5 of the same section.

While sharply conflicting, it is not disputed that there was evidence tending to show that, on and prior to July 10, 1914, the Pacific Cold Storage Company owned a number of unusually large steers which were kept in a pasture near the town of Toppenish in Yakima county; that two of these, having unusually large feet, were missed from the pasture on July 11, 1914, and a day or two later were tracked by the men in charge to defendant's slaughterhouse on the west side of the Yakima river opposite the town of Granger; that pieces of meat, such as would be produced only from unusually large animals, were found in defendant's meat market in the town of Granger, and that one head conforming to that of one of the steers and two hides of large animals of the color and bearing the brands of the two missing steers were found secreted near defendant's slaughterhouse. We shall not discuss the evidence in detail, since it is not disputed that there was evidence, though contradicted, from which the jury were justified in believing that defendant hired two men, Matney and Yeager, to take the two steers from the pasture on the night of July 10, 1914, and drive them to his slaughterhouse; that by prearrangement they awakened defendant by tapping upon the window of his residence near the slaughterhouse; that with the assistance of the two men defendant slaughtered one of the steers that night and the other the next day; that defendant paid the two men $43 for the steers, and took the meat, shipping part of it to Spokane and selling part of it at his meat market in Granger. Though most of the evidence as to defendant's connection with the crime was found in Yeager's testimony, Matney having broken jail and escaped prior to the trial, and though Yeager told a somewhat different story when first arrested, the credibility of his testimony at the trial, corroborated as it was in many particulars by other testimony and circumstances, was clearly for the jury.

When the state had rested counsel for defendant moved that the prosecution be required to elect whether it would ask for a conviction of defendant as an accessory before the fact or as a principal in the act of larceny or as a receiver of stolen property. The motion was denied, the court holding that the question of defendant's guilt as an aider and abettor in the actual theft, and as a receiver of stolen property knowing of the theft, should be submitted to the jury. When the evidence was all in, the court gave instructions submitting these two questions. From the judgment of conviction and sentence defendant has appealed, assigning but two grounds.

1. It is first asserted that the court erred in refusing to compel the state to elect, and in instructing the jury that it might convict appellant either as an aider and abettor in the larceny or as a receiver of the stolen property. In this connection the argument rests upon the postulate that the charges of actual commission of the larceny and of receiving the stolen goods are, in their nature, inconsistent, the one disproving the other. It is said that one cannot be holden as receiver of goods which he himself has stolen. Sustaining authorities are cited, but we find it unnecessary to review them. The postulate may be accepted as sound without invalidating either the information or the instruction here involved. The information did not charge appellant with participating in the actual theft. It did not charge that he was even present when the theft was committed. On the contrary, it charged that he hired and procured the other two men to commit the theft, and in terms that the other two men actually committed it, and that he purchased and received the steers from them knowing that fact. There is nothing inconsistent in the things charged against appellant. Rather the knowledge that the cattle...