State v. McPherson, 5375
| Decision Date | 18 September 1930 |
| Docket Number | 5375 |
| Citation | 49 Idaho 687,291 P. 313 |
| Parties | STATE, Respondent, v. JOHN MCPHERSON, Appellant |
| Court | Idaho Supreme Court |
CRIMINAL LAW-LARCENY-ELEMENTS OF - NONCONSENT OF OWNER-EVIDENCE-CREDIBILITY OF WITNESSES-INSTRUCTIONS.
1. Nonconsent of owner of property alleged to have been stolen which is element of larceny, may be proven by circumstantial evidence.
2. Evidence held sufficient to support conviction of grand larceny for feloniously taking cattle.
3. Instructions are to be considered and construed together as a whole and so applied to facts.
4. Instruction that jurors are sole and exclusive judges of facts, credibility of witnesses and weight of testimony and effect of wilful falsity, held not erroneous.
5. Instruction that, if believing witness testified falsely as to material fact, jury may disregard whole of testimony of witness, except as corroborated by credible witnesses or evidence, held not erroneous.
6. Whether testimony of witness believed to be false as to material facts is corroborated, is question of fact for jury.
APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Jay L. Downing, Judge.
John McPherson was convicted of the crime of grand larceny and he appeals from the judgment. Affirmed.
Affirmed.
Solon B. Clark and Harry Holden, for Appellant.
The evidence is insufficient to support the verdict or judgment for the reason that the state failed to prove that Paul Zeames did not consent to the taking of the animals in question by the defendant. (State v. Hurst, 36 Idaho 156, 209 P. 724; State v. Platts, 31 Idaho 19, 168 P. 1143.)
W. D Gillis, Attorney General, and Fred J. Babcock and Leon M. Fisk, Assistant Attorneys General, for Respondent.
The want of consent of the owner to the taking of his property alleged to have been stolen may be proven by facts and circumstances which sufficiently show that the property was feloniously taken. (State v. Kaiser, ante, p. 351, 288 P. 154; State v. Ireland, 9 Idaho 686, 75 P. 257; State v. Platts, 31 Idaho 19, 168 P. 1143; State v. Jones, 119 Ore. 320, 249 P. 360; State v. Wong Quong, 27 Wash. 93, 67 P. 355; Jackson v. State, 10 Okla. Cr. 525, 139 P. 324; Devore v. State, 33 Okla. 403, 243 P. 99.)
Appellant was convicted of grand larceny for the felonious taking of a cow and steer, the personal property of another, to wit, Paul Zeames. This appeal is from the judgment of conviction.
The taking of the cattle was admitted by appellant but he claimed they were sold to him by Zeames, who, it was testified by appellant, stated he was indebted to the bank in a considerable sum, the bank was crowding him for the money and he wished to save something out of them. Appellant said that after looking at the cattle he agreed to purchase four head for $ 250 and gave Zeames $ 40 as a down payment, after which he proceeded to the place where the cattle were pastured and butchered four head, loaded them in a truck and drove to Pocatello, some distance away, where he endeavored to dispose of the carcasses. While in Pocatello on this mission appellant was arrested and returned to Lemhi county, where the charge of grand larceny was preferred.
A number of articles used in connection with the butchering of the cattle were carried in the truck until appellant reached Pocatello, then most of them stored in a garage while negotiations were being made for disposal of the meat. In a transaction looking to a sale appellant gave a fictitious name and location of his residence, stating on the witness-stand in explanation thereof that he became suspicious whether the bank would "come on" him for the money owing it by Zeames.
In making proof of the charge of larceny the owner of the two head of cattle was not asked the specific question of whether or not he consented to their being taken by appellant. Nonconsent of the owner of property alleged to have been stolen, one of the elements of larceny, may be proven by circumstantial evidence. (State v. Kaiser, ante, p. 351, 288 P. 154, and cases cited.) The owner related having missed some of his cattle and of finding parts of the butchered animals secreted about the place where they had been killed. He denied having met appellant at the times or places claimed by the latter and of having any conversation with him relating to the sale of any cattle. He said he had not sold any of his stock for a number of months. Not only is nonconsent sufficiently shown by the testimony adduced on behalf of the state, but the facts and circumstances as a whole substantially support the issue of a felonious taking.
Complaint is made of the giving of the following instruction:
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State v. Davis, 6366
... ... distinction, and since the jury must be satisfied of the ... truthfulness of the testimony, not the court, State v ... McPherson , 49 Idaho 687, 291 P. 313, and the instruction ... required that the false testimony to render it nugatory must ... be wilful and intentional and ... ...
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State v. Huff, 6344
...together with numerous other circumstances. The credibility of the witness Iriye was exclusively for the jury (State v. McPherson, 49 Idaho 687, 291 P. 313; State v. Brown, 53 Idaho 576, 26 P.2d 131), as likewise the question of whether or not he was impeached. ( State v. Parris, 55 Idaho 5......
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...v. Dong Sing, 35 Idaho 616, 208 P. 860; State v. Muguerza, 46 Idaho 456, 268 P. 1; State v. Alvord, 47 Idaho 162, 178, 272 P. 1010; State v. McPherson, supra.) In Bennett State, 147 Okla. 14, 294 P. 149, cited by appellants, the instruction considered therein was held erroneous for the reas......
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State v. Davis, 7511
... ... to search for the truth, believing only such testimony as ... carried conviction of truth to their minds. State v ... McPherson, 49 Idaho 687, 291 P. 313. In other words, the ... jury are the exclusive judges of the credibility of witnesses ... and weight of the evidence ... ...