State v. Kyle

• Decision Date: 23 May 1896
• Citation: 45 P. 147,14 Wash. 550
• Parties: STATE v. KYLE.
• Court: Washington Supreme Court

45 P. 147

14 Wash. 550

STATE v. KYLE.

Supreme Court of Washington

May 23, 1896

Appeal from superior court, Spokane county; Norman Buck, Judge.

Joseph Kyle was convicted of stealing neat cattle, and appeals. Affirmed.

Gordon and Anders, JJ., dissenting.

Fenton & Saunders, for appellant.

J. W Feighan, for the State.

HOYT C.J.

This appeal is from a judgment and sentence, imposed after a verdict of the jury, finding defendant guilty of the crime of stealing neat cattle. Many errors have been assigned and argued in the brief of appellant, but every question raised by such assignments depends upon the decision of two principal questions. The first is as to the sufficiency of the information upon which the defendant was placed on trial. It was substantially in the following language: "J. W. Feighan, prosecuting attorney in and for the county of Spokane and state of Washington, comes here into court, and in the name and by the authority of the state of Washington gives the court to understand and be informed that the said defendant Joseph Kyle is hereby charged with the crime of stealing neat cattle, committed as follows, to wit: That on the 13th day of November, A. D. 1895, at the county of Spokane and state of Washington, Joseph Kyle, then and there being, did then and there unlawfully and feloniously steal, take, lead, and drive away two head of neat cattle, then and there being the property of and belonging to Thomas Davis, said two head of neat cattle being valuable and of the value of twenty dollars per head, which said two head of neat cattle were permitted by the owner thereof, Thomas Davis, to run at large and graze upon the range,-contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Washington." It is not contended but that it would have sufficiently charged the statutory crime of stealing neat cattle if the allegation as to value of the cattle stolen had been omitted, but it is claimed that the charge in the information that the stolen cattle were of the value of $20 per head so changed its effect that it no longer charged simply the crime of stealing neat cattle, but also charged the crime of grand larceny, as defined by our statute; the argument being that, since it was unnecessary to say anything about the value of the animals in order to properly charge the crime of stealing neat cattle, the stating in the information that they were of a certain value must have been for the purpose of showing that the crime of grand larceny had been committed. It is probably true that an information for stealing neat cattle would be good without any allegation as to the value of the animals taken, but it does not follow that an information otherwise sufficient would be rendered invalid by such statement as to value. As well might it be claimed that an indictment which would be good that charged the stealing of a gray horse would be rendered invalid by a further allegation that the gray horse was nine years old. If the allegation as to value of the animals was unnecessary, it should be rejected as surplusage, and it should be held to have no effect upon the other allegations of the information. If it had been stated in the information that the defendant was accused of the crime of grand larceny and the facts constituting the crime had been alleged as in the information under consideration, there might be some force in the contention that the facts stated were such as would be necessary to charge the crime of grand larceny; but it having been stated, in this information, that the defendant was charged with the crime of stealing neat cattle, and the facts alleged being sufficient to charge that crime, it must be presumed that the facts alleged charged that crime and no other.

The other question grows out of objections to the introduction of evidence, and to the action of the court in instructing and refusing to instruct the jury, and was founded upon the contention of appellant that the crime of stealing neat cattle was not larceny, within the meaning of the section of the statute ^[1] which provided that a prosecution for larceny might be had either in the county where the property was first taken, or in one into which it was brought by the thief after it had been taken in another county; and upon the further contention that the act of March 21, 1895, which provided that, in prosecutions for larceny, under section 52 Pen. Code, where the animal alleged to have been stolen was permitted by its owner to run on the range, proof of possession of the animal by the person accused of stealing the same should be prima facie evidence that the accused acquired possession thereof recently, and should have the effect of throwing on the accused person the burden of explaining such possession, was unconstitutional, by reason of the fact that its effect was to cast the burden of proof in a criminal case upon the accused. As to the first contention, it is sufficient to say that the statute which punishes the felonious taking of neat cattle describes the act as being that of stealing such cattle, and, while it is true that that fact does not make the crime therein provided for common-law larceny, it does constitute it such a statutory larceny as to bring it within the definition of larceny in the section referred to. We are unable to agree with the contention that the other section referred to is unconstitutional. It is but an extension of the rule, which has long prevailed, that possession of property recently stolen is sufficient proof that the possessor is guilty of the crime to call upon him to explain his possession; and, so far as we are aware, it has never been claimed that the holding of the courts, that such prima facie presumption flowed from the fact of possession, infringed any constitutional right of the defendant; and, if the existence of such a presumption did not infringe constitutional rights, we are unable to see that the presumption which the section in question authorizes the court to enforce...