State v. McCarty
| Decision Date | 21 April 1921 |
| Citation | 182 N.W. 754,47 N.D. 523 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Stark County, Frank T. Lembke, J Clifford A. McCarty was convicted of grand larceny and appeals.
Reversed.
Judgment reversed and a new trial granted.
H. E Haney, for appellant.
If defendant did so obtain the property, without fraud or deceit, he is not, under the law, guilty of larceny, no matter what intent he may have formed thereafter. This is well settled by the authorities. 2 Sackett, Instructions §§ 30--32; Starch v. State, 63 Ind. 283, 29 Am. Rep. 762; State v. Meldrum, 70 P. 526.
The court invaded the province of the jury in assuming and informing them that in his mind the crime charged had been committed, thus taking from the jury the important province of ascertaining this fact. 12 Cyc. 445, 449; Keivner v. People, 43 P. 1047; State v. Reilly, 25 N.D. 339, 361; Sackett, Instructions, pp. 771--774.
J. P. Cain, Special Prosecutor, Wm. Lemke, Attorney General, and Walter Ray, State's Attorney, for respondent.
That larceny may be accomplished by an open taking is upheld in the case of State v. Powell, 4 L.R.A. 291 and note on p. 292; 17 R. C. L. p. 11, § 10; 11 Whart. Crim. Law, §§ 1152--1155.
For the law of this state in regard to who are principals in the commission of any crime so committed, see: State v. Rosencranz, 40 N.D. 93.
ENGLERT, District J. BIRDZELL and BRONSON, JJ., concur, GRACE, J. (specially concurring). ROBINSON, Ch. J. (dissenting). Mr. Justice CHRISTIANSON, did not participate, Hon. M. J. ENGLERT of the First Judicial District, sitting in his stead.
The defendant was convicted of the crime of grand larceny and appeals.
The information charged that the defendant, "did by fraud or stealth, wilfully, unlawfully, and feloniously, take, steal, carry or drive away," five calves, belonging to Edward Jossucks, without his consent and "with intent then and there to deprive the owner thereof."
To enable an intelligent understanding and disposition of the questions raised on this appeal, it becomes necessary to set forth the material substance of the state's evidence.
Al Metzler testified that in the fall of 1918 he had several talks with the defendant, C. A. McCarty, about stealing some unbranded calves for him. On November 16th, 1919, Metzler and one John Bergstad, who also testified for the state, met the defendant at his office in Belfield, North Dakota, and after some talk, defendant said he would pay Al Metzler $ 20 per head for all unbranded calves he could steal and bring to him. That defendant at that time claimed that Mr. Jossucks was about to ship cattle, and that his calves were not yet branded. So that night Metzler and Bergstad went to the Jossucks ranch and stole six calves and with them came seven head of grown-up cattle, and put them in defendant's pasture on his ranch on the morning of November 17th, 1918. Metzler then went to his home and had his wife write a note to defendant, informing him that he, Metzler, had delivered six calves by placing them in his pasture, and sent the note to defendant with a boy named James Gilman. About the 19th, Metzler saw defendant and asked him for the money; that defendant claimed to have seen the calves and refused to pay for one because it bore Goodacre's brand. He did pay Metzler $ 20 per head for the other five. That in December or January following defendant asked Metzler to buy a calf from Goodacre and secure a blank bill of sale so that the description of the calf on the ranch could be inserted. But Goodacre refused. Both Metzler and Bergstad admitted having stolen a drove of horses, and cattle, and that they had sold them to others, besides the ones in question.
Mrs. Metzler testified to having written the note to defendant, and that the boy carried it to him. She also testified that defendant saw her about the time warrants were issued for the arrest of Metzler and Bergstad, and that he told her to rest easy and not to worry for he had seen Jossucks, settled the matter with him at a cost of $ 300 and that "he would not take it to court."
Mr. Jossucks, owner of the calves, testified that he first learned of the whereabouts of the calves from the defendant; that defendant claimed at that time to have purchased the calves from Al Metzler; that owing to their long hair at the time he purchased them, he could not tell that any of them bore Jossucks' brand; that when they shed off in the spring, he noticed two or three bore Jossucks' brand; that defendant offered to return the calves to or pay Jossucks for them; that he told Jossucks about having his calves sometime in March or April, 1919; that when Jossucks suggested having Metzled arrested defendant said to him "not to do it, he would get him to leave the country, and if he didn't leave the country, then he will have him arrested."
C. P. Jacobson, foreman on defendant's ranch, and third owner, testified that defendant told him to "drive them (the big cattle) towards the brakes and they would go home." That this was in a northeasterly direction and towards the Jossucks ranch; that they returned a couple of days after; that defendant and his wife drove them off in the same direction. After defendant discovered that some of the calves bore Jossucks' brand, he told Jacobson not to brand them with the ranch brand, but that he, Jacobson, branded them about May 1st, without the knowledge of the defendant. Defendant had told him in the spring of 1919 that he had found the owner of the calves; that they had never been returned to Jossucks and that they were still on defendant's ranch.
Without quoting any of the testimony of and for the defense, it is enough to say that he denied being a party to the stealing, and as an affirmative defense he claims to have purchased the calves in good faith from Al Metzler.
1. Defendant contended that the verdict is contrary to the law and the evidence, because the state offered no credible evidence corroborating the testimony of the accomplices which tended to connect appellant "with the taking of the property in question."
That Al Metzler and John Bergstad, if their testimony is true, were accomplices, is admitted by the state. Under the law of this state, the defendant cannot be convicted upon their evidence alone. Comp. Laws 1913, § 10,841.
In this case the evidence, which is entirely independent of the testimony given by the accomplices, shows that the property was found in possession of the defendant shortly after it was stolen. A couple of days after the larceny the defendant drove the big cattle in the general direction of their home, the Jossucks ranch. When Jossucks came to see the calves and spoke of having Metzler arrested, defendant told him not to, and that he would drive Metzler out of the country. About the time warrants were issued for the arrest of Metzler and Bergstad, defendant told Mrs. Metzler not to worry, that he had matters fixed up with Jossucks and that "he would not take it to court."
This evidence is sufficient to satisfy the statute. Its weight and credibility is for the jury.
2. The defendant complains of the following instruction given by the trial court:
"The court further instructs you that the recent possession of stolen property, unless satisfactorily explained, is a circumstance tending to show the guilt of the defendant, and must be taken with the other evidence in this case to determine his guilt or innocence."
This instruction is in accord with the general rule on the subject (17 R. C. L. 71, § 76), and is in harmony with the recent decision of this court. State v. Ross, 46 N.D. 167, 179 N.W. 993. 3. Error is assigned on the following instructions:
(1) "The court instructs the jury that if they believe from the evidence beyond a reasonable doubt, that the defendant, Clifford A. McCarty, at the time alleged in the information, advised and encouraged the witnesses Al Metzler and John Bergstad to commit the crime charged in the information, or aided or abetted in the commission of such crime, then Clifford A. McCarty is as guilty as though he actually stole the property alleged to have been taken in the information."
(2) "You are further charged that the witnesses, Al Metzler and John Bergstad, who testified for the state in this case, are accomplices in the crime charged. " Each of these two instructions was taken from a different part of the general instruction given by the trial court on the subject.
It is contended that by these instructions the court assumed that the crime charged in the information had been committed, and so informed the jury. Each of these two instructions standing alone is subject to criticism. State v. Reilly, 25 N.D. 339, 141 N.W. 720. But in other parts of its general charge, the trial court told the jury that the information "merely states the charge," and "outlines the issues to be determined from the evidence," and from the reading of the entire charge, we are satisfied that the jury was not misled, and at most, it was error without prejudice.
4. The evidence as to the accomplices was in dispute. Such an instruction can only be given where there is no dispute in the evidence. Territory v. West, 14 N.M. 546, 99 P. 343. But when considered with the rest of the instruction, it may be considered error without prejudice.
The special prosecutor argued at some length to the jury that even though defendant came innocently into possession of the calves in the first instance, if at any time within three years subsequent thereto, he conceived the idea or formed an intent to appropriate the same to his own use, and he did so and now has them, he would be guilty of...
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