State v. McKenzie
| Decision Date | 17 November 1943 |
| Docket Number | 4755. |
| Parties | STATE v. McKENZIE. |
| Court | New Mexico Supreme Court |
Rehearing Denied Jan. 12, 1944.
Appeal from District Court, Quay County; J. C. Compton, Judge.
Homer McKenzie was convicted of larceny, and he appeals.
Reversed for new trial.
C. C Davidson, of Tucumcari, E. P. Ripley and H. A. Kiker, both of Santa Fe, for appellant.
Edward P. Chase, Atty. Gen., and Harry L. Bigbee, Asst. Atty. Gen for appellee.
The appellant, Homer McKenzie, was convicted in the District Court of Quay County of the larceny of a calf, and was sentenced to serve a term in the State Penitentiary for not less than two nor more than five years, and that he pay the costs of his prosecution. Upon an appeal to this Court he assigns error as follows:
First there is no substantial evidence to support the verdict of the jury.
Second, the trial court's denial of appellant's motion for a new trial was an abuse of discretion.
The information in its charging portion is as follows: That Homer McKenzie stole one calf from W. W. Minter.
The question presented by the first assignment of error is one of fact. The record discloses that appellant failed to invoke a ruling from the trial court, either at the close of the state's case, or at the close of the whole case by a motion for an instructed verdict of not guilty for lack of proof of the crime charged. Having so failed, he is now precluded from raising the question here, State v. Garcia, 19 N.M. 414, 143 P. 1012; State v. Starr, 24 N.M. 180, 173 P. 674; State v. Board of Trustees of Town of Las Vegas, 32 N.M. 182, 253 P. 22; Cavins v. Armstrong & Armstrong, 37 N.M. 141, 19 P.2d 747; unless the state, by failing to interpose a timely objection, has conceded the point.
Appellant's main contention is that there is no substantial evidence to support the verdict of the jury. An application of the foregoing rule would be sufficient to dispose of this appeal, but since the state does not invoke a ruling thereon, and both parties seek a review of the question of the sufficiency of the evidence to sustain a conviction of the offense charged, we proceed to consider that question.
The question here involves two separate groups of cattle. One of these groups consists of five head of white faced calves, three steer and two bull calves. On November 4, 1941, W. W. Minter was the owner of three of the calves and two were the property of his son, a boy about fifteen years of age, whose name does not appear in the record. W. W. Minter delivered these calves on November 4, 1941, to Walter Perkins, who took them to Tucumcari for the purpose of selling them through the sales ring there. The calves were not sold through the sales ring on account of bad weather, and Perkins took the calves to the Parkhill ranch five miles out of Tucumcari on November 6, 1941. These calves were kept in a small corral until November 9th at the Parkhill place, and then were turned into a 540 acre pasture, which adjoined the pasture of John McDonald, previously known as the Eager ranch consisting of fifteen sections. The McDonald ranch joined the Parkhill ranch and almost surrounded it. The fences between the two ranches were not good. On the following Monday, Parkhill's son missed two of the calves and made some search but could not find them. Others also looked for the calves and failing to find them, advertisements were inserted in the Tucumcari paper for the calves as strays. These calves were all branded with the lazy F. H. brand on the right hip. The two belonging to the Minter boy were branded low down on the hip. The two calves that were missing were never located by Minter or the Parkhill boy, and no information was obtained as to their whereabouts through advertisements in the paper.
On January 1, 1942, a calf bearing the lazy F. H. brand on the right hip was found in a group of cows and calves being inspected at Clovis, New Mexico, for the appellant. The calf was with a herd of cattle bearing the "C.S." brand which belonged to the appellant. When the calf bearing the lazy F. H. brand was discovered by the inspector at Clovis, the appellant claimed that the calf came with the "C.S." cows purchased by him at Colfax, New Mexico. In order to determine whether the calf belonged to the "C.S." cows as claimed by the appellant, the cattle inspector and the appellant placed the calf with the "C.S." cows to see whether it would take up with and suck any of the cows. The calf failed to claim any of the "C.S." cows as its mother, whereupon the appellant gave the Cattle Sanitary Board a check in payment for the calf. The fences between the Parkhill ranch and the McDonald ranch were in poor condition, and some testimony was to the effect that a horse could go over the fence and a cow could go through it at several places.
As to the other group of cattle: In October, 1941, Cleo Norwood arranged to purchase some cattle from one Roy Lewis. These were "C.S." cattle and were received by Norwood and appellant at Colfax, New Mexico. Appellant bought an interest in the cattle after the original trade had been made by Norwood. There were 245 head of "C.S." cows and thirteen calves not branded, according to the inspection made at the time of delivery. The cattle were shipped to Tucumcari and were taken to the McDonald ranch by Norwood and appellant on October 30, 1941. On November 24th, the appellant moved sixty three of the "C.S." cows and twelve calves from the McDonald ranch to the wheat pasture near Clovis. Before moving the cows and calves from the McDonald ranch, appellant requested that they be inspected by John McDermitt, a cattle inspector. An inspection failed to find any calves bearing either the lazy F. H. brand or the "C.S." brand. Some time after the calves were missing from the Parkhill pasture, the record does not disclose when, Perkins, to whom they had been delivered, paid Minter for the calves that were missing.
The appellant sold to H. H. Gray of Portales, New Mexico, some cows and calves including the cows and calves that he had moved from the McDonald ranch to the wheat pasture near Clovis. The sale took place the latter part of December, 1941, and delivery was made on the first day of January, 1942. Before delivery was made to Gray of the cattle so sold, appellant requested that the cattle inspector at Clovis, New Mexico, inspect the cattle that he was to deliver to Gray. Haskell Worley inspected the cattle and found one calf bearing a "C.S." brand on the right ribs and one with the lazy F. H. brand on the right hip. When the cows and calves were moved by the appellant from the McDonald ranch to the wheat pasture near Clovis, one of the "C.S." cows and a calf were left by appellant at the McDonald ranch. When it was found that the calf bearing the lazy F. H. brand did not suck any of the "C.S." cows, the appellant made no further claim to it, but issued his check in payment thereof to the Cattle Sanitary Board. Upon this state of facts, the appellant was convicted of stealing the calf found in his possession and bearing the lazy F. H. brand from W. W. Minter in Quay County.
Appellant's chief argument is that there is no proof of the corpus delicti.
The state argues that the unexplained possession by appellant of the property described in the information, recently after the alleged larceny, raises the presumption that a larceny has been committed and that appellant was guilty thereof. The weakness in the state's argument lies in the fact that there is a total failure of proof that a larceny had been committed by appellant or any other person. No contention was made by the owner or anyone else that the calf had been stolen until it was found in the possession of appellant. All parties concerned were under the impression that the calf had strayed from the Parkhill pasture.
The rule contended for by the state is discussed in State v. Eppers, 138 Or. 340, 3 P.2d 989, 992, 6 P.2d 1086, which cites 36 C.J. § 427, p. 867 et seq.:
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