State v. Liston.
| Decision Date | 02 December 1921 |
| Docket Number | No. 2618.,2618. |
| Citation | 202 P. 696,27 N.M. 500 |
| Parties | STATEv.LISTON. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Proof that ownership of stolen cattle was in the person alleged by the indictment to be the owner, that the cattle were stolen, that shortly after the theft they were found near the ranch of defendant, bearing his brand, freshly put on, and that he then claimed to own them, is sufficient prima facie proof of an unlawful taking and asportation, and makes a prima facie case of larceny, although other cattle of the owner grazed in the same locality where the stolen cattle were found.
Additional Syllabus by Editorial Staff.
The corpus delicti of a crime may be proved by circumstantial evidence.
That facts may show guilt of a lesser crime is no defense to the one charged, when the facts sufficiently show all the elements of the crime charged.
Appeal from District Court, Sandoval County; Hickey, Judge.
Ross Liston was convicted of the larceny of cattle, and appeals. Affirmed.
Proof that ownership of stolen cattle was in the person alleged by the indictment to be the owner, that the cattle were stolen, that shortly after the theft they were found near the ranch of defendant, bearing his brand, freshly put on, and that he then claimed to own them, is sufficient prima facie proof of an unlawful taking and asportation, and makes a prima facie case of larceny, although other cattle of the owner grazed in the same locality where the stolen cattle were found.
Heacock & Grigsby, of Albuquerque, for appellant.
Harry S. Bowman, Atty. Gen., for the State.
In 1918 Evidardo Montoya was the owner of cattle ranging in Sandoval county. Among them were a number of calves then about a year old, so that they were referred to by some witnesses as yearlings. During the last of June or the first of July some of these calves were stolen. The last time Montoya saw them was about 20 days before he discovered the theft. About July 15th he went to the ranch of appellant, Ross Liston, to inquire about them. Liston told him he had not seen the calves. About 10 days later Montoya again went to the vicinity of Liston's place, and then found three of his missing calves. All were fresh-branded with Liston's brand. Two other witnesses saw these three animals at about the same time and place, and likewise identified the Liston brand. The country where they were found was apparently open range, and other cattle of Montoya's were grazing there. Liston then claimed these calves as his. There was testimony that he owned no cows.
In May, 1919, Liston was indicted for the larceny of “three head of neat cattle.” The statement made above shows the condition of the evidence at the close of the testimony for the state. A motion for a directed verdict was made on the ground that there was no proof of the asportation of these calves, or, as alternatively expressed in the motion, no proof that Liston did “ride, drive, carry, or lead away any one of the animals alleged to be stolen.” The motion was overruled, and this is assigned here as error.
Before a case of larceny is complete, there must, of course, be evidence of an unlawful taking and asportation, and there was no direct proof of the commission by the appellant of these elements of the crime at this stage of the trial. But these facts may be shown inferentially. There was positive proof that the calves were stolen by some one while unbranded, and that within a few weeks they were found near the ranch of appellant, bearing his brand freshly put on, and that he claimed them as his own. The identity of the animals was sufficiently established. They belonged to Montoya. From appellant's claim that these fresh-branded calves were his, there is a natural and reasonable inference that they were so branded by him or under his authority. Before they could have been branded, they must have been in his control and possession; there necessarily was an actual physical taking. For some space of time the appellant was in the exclusive control and possession of these calves.
That this is a proper conclusion is shown by the testimony of appellant, later in the case, that he himself branded one of these calves and directed the branding of the other two, all in the corral of ...
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State v. Paris
...element of subsequent possession in the defendant of the stolen property was present. See, e.g., State v. Ortega, supra; State v. Liston, 1921, 27 N.M. 500, 202 P. 696; State v. Cason, supra. In the present case, no possession was ever shown in defendant. There was only a loss by the owner ......
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State v. Buchanan
...we think the evidence here was sufficient to establish, by circumstantial evidence, the corpus delicti of larceny. See State v. Liston, 1921, 27 N.M. 500, 202 P. 696 and State v. Cason, supra, where the court '* * * In a trial for the larceny of neat cattle evidence that tended to establish......
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State v. Reed, 5313
...25 N.M. 439, 184 P. 531; State v. Ulibarri, 28 N.M. 107, 206 P. 510; Territory v. Harrington, 17 N.M. 62, 121 P. 613; State v. Liston, 27 N.M. 500, 202 P. 696; State v. Ortega, 36 N.M. 57, 7 P.2d The appellants also contend that the trial court erred by refusing to give their requested inst......
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State v. Lopez
...of course, means an unlawful taking out of the possession of the owner without his consent. State v. Curry, supra ; State v. Liston, 27 N.M. 500, 202 P. 696 (1921). In Curry, the prosecutrix testified with reference to her permission, consent and In an action seeking damages for trespass, T......