State v. Lennick

• Decision Date: 04 April 1921
• Parties: STATE v. LENNICK.
• Court: North Dakota Supreme Court

47 N.D. 393

182 N.W. 458

STATE

v.LENNICK.

Supreme Court of North Dakota.

March 17, 1921.

Rehearing Denied April 4, 1921.

Syllabus by the Court.

The presumption of fact that the recent possession of stolen property, not satisfactorily explained, is an evidentiary fact from which the crime of larceny may be imputed, equally applies when such property is found in the possession of another in another jurisdiction.

For reasons stated in the opinion, it is held, that the failure of the justice of the peace to indorse upon the complaint the formal order required by section 10611, Comp. Laws 1913, did not deprive the trial court of jurisdiction.

Appeal from District Court, Mercer County; Hanley, Judge.

George Lennick was convicted of larceny. New trial was granted, and the State appeals. Reversed.John Moses, State's Atty., of Hazen, and Miller, Zuger & Tillotson, of Bismarck, for the State.

S. P. Halpern, of Hebron, and Sullivan & Sullivan, of Mandan, for respondent.

BRONSON, J.

The defendant was convicted upon an information charging him with the larceny of three milch cows in Mercer county. The trial court ordered a new trial upon the insufficiency of the evidence to show the commission of the crime in Mercer county. The state has appealed from the order. The complainant was a farmer in Mercer county engaged in the dairy business. On May 26, 1920, in the morning, he put ten milch cows and some other cattle in a pasture on his farm, consisting of some 200 acres fenced. This pasture had two gates, and in places the fence was not in good condition, although it was in such shape that the cattle would not get out. In the evening one of his boys reported three milch cows missing. During three days thereafter the complainant searched throughout the surrounding neighborhood, and was unable to locate the missing cows. On June 8, 1920, upon information furnished, he found the cows upon the defendant's farm, some 40 miles distant from complainant's farm. The cows had been rebranded “K. L.” over the brand of the complainant. Theretofore the cows were branded “M. F.,” the registered brand of the complainant. Upon the next day the complainant returned and, not finding the defendant or his wife there, took the cows back to his farm. Later he caused the defendant to be arrested for larceny, and upon the preliminary examination before a justice of the peace the defendant was bound over to the district court.

In a conversation which the complainant had with the defendant at the time of the preliminary examination and afterwards, the defendant admitted that he had got the brand from his father, a neighbor of the complainant, in Mercer county; that he branded the cows; that he purchased them from one Schaffner on May 26, 1920, and had brought them to the farm on May 27, 1920; that he had given to Schaffner a note and mortgage for such cows. After the preliminary examination, the defendant went to see the complainant and made some offer of settlement by stating that he would work his whole life to pay for the trouble.

Schaffner, as a witness, testified that he did not sell these cattle to the defendant; that he never received any note or mortgage from him therefor, and that he had not seen the defendant until he came out with an attorney to see him (which was after the cows had been taken back by the complainant). The pasture of the complainant was about four miles from the Dunn county line. No direct evidence appears in the record that the defendant was within the county of Mercer between the time when the cows were lost and were found. At the trial, on the conclusion of the state's case, the defendant moved to dismiss because of the failure to prove the commission of the crime within Mercer county and then submitted the case without introducing any testimony in behalf of the defendant.

The justice of the peace, in his return of the proceedings had at the preliminary hearing, did not indorse upon the complaint or in his docket the statutory formal order required by section 10611, C. L. 1913. The state contends that the evidence was sufficient for the jury to find that the crime was committed in Mercer county and that the trial court abused its discretion in granting a new trial. The defendant maintains that the state wholly failed to prove the venue of the offense, and, further, that, in any event, the failure of the justice to make the indorsement required by law is fatal to the state's contentions.

The evidence adduced was...