State v. Moss

• Decision Date: 17 June 1919
• Parties: STATE v. MOSS.
• Court: Oregon Supreme Court

182 P. 149

95 Or. 616

STATE v. MOSS.

Supreme Court of Oregon

June 17, 1919

Department 1.

Appeal from Circuit Court, Lake County; L. F. Conn, Judge.

W. Z Moss was convicted under L. O. L. § 1950, of larceny of cattle, and he appeals. Reversed and remanded.

The defendant was indicted for the larceny of two steers, seven cows, and one calf, all branded and said to be owned by different parties, two of whom had a recorded brand. We condense the statement following from the brief for the state, supplemented by some of its testimony: The defendant himself was the owner of several hundred head of cattle which, with the animals mentioned in the indictment and still others owned by other and different parties, were ranging on a tract in the forest reserve, the pasturage of which had been allotted to the defendant. Those in dispute were collected by an inspector of brands and his assistants. Six heads of them were taken from a band of about 300 others, of which it was estimated four-fifths were the property of the defendant, and the remainder belonged to other individuals without dispute. The other 4 were found at large in the same neighborhood.

There was evidence to the effect that most of the 10 head mentioned in the indictment had on them mutilated brands of the alleged owners and the brand of the defendant as well. The cattle in question were taken by the inspector to Lakeview and kept there in custody of the sheriff pending the trial of the defendant. When the inspector went into the country where the cattle were feeding he met a man named Silvers, said to be the defendant's employé, about half a mile from the herd. There was testimony to the effect that Silvers had been sent there by the defendant to build a corral into which to put his calves during the weaning period, and that the defendant himself had also gone there to instruct Silvers where to build the inclosure. Two witnesses testified to the effect that when the cattle had been brought to Lakeview the defendant was asked concerning them and said, "Some of them are mine." Respecting the range where the cattle in question were found, the following excerpt from the testimony of John Allen, a witness for the state, is here set down:

"Q. What is the nature of the country in general between Sherman Valley and where they had these cattle? A. There is just cattle trails between the south fork and that, a kind of a rim, a rocky rim, with trails--

"Q. Can cattle pass from one place to another? A. Yes, sir.

"Q. Was that in a little valley where they had them? A. Yes sir; in between the two mountains.

"Q. Approximately how large is Sherman Valley, if you can give us an idea, how far across it? Just to give us a general idea. A. I should judge there is two or three hundred acres in Sherman Valley, what they call Sherman Valley meadow. * * *

"Q. Do you know anything about whose range that is, whether it is under lease, or anything about that? A. Yes, sir.

"Q. Whose is it? A. Anybody's that runs cattle on the reserve.

"Q. Anybody that gets a permit can run cattle there? A. Yes sir. * * *

"Q. The cattle don't know who has a permit, do they? A. No sir.

"Q. The range is not fenced in? A. No, sir.

"Q. Any of the cattle that are out on the public range outside of the forest reserve can get in there if they want to? A. Yes, sir.

"Q. Do you know whether it is the habit of cattle to follow other cattle in the hills, and congregate together? A. Yes sir.

"Q. That is their habit? A. Yes, sir. * * *

"Q. Do you know whether these cattle, at the time you saw them, were on the forest reserve or off? A. On.

"Q. Know where the forest reserve lines are? A. Yes, sir.

"Q. The forest reserve line there runs almost directly north and south, doesn't it, the exterior line on the east side? A. Right down below, I think it does; it jogs on the way there, though.

"Q. It may jog on a section line, or something of that kind, but the general course is north and south? A. Yes, sir.

"Q. Off on east of that, what is it, the general country east, as to being open public range, or being fenced up? A. It is all open public range all through there.

"Q. Is there any obstruction of any kind to keep cattle from going right on to the forest reserve? A. No, sir; only around the meadows is all.

"Q. Whenever a man has a small ranch or meadow fenced, that is the only fenced land? A. Yes.

"Q. And cattle turned loose on the public range can go right on the forest reserve if they wish to? A. Yes, sir.

"Q. What do you say as to whether there are good trails between the public range and the forest reserve, showing cattle travel them? A. There are trails all through there. * * *

"Q. During the summer, prior to the time these cattle were found there, did you see cattle of other people besides those you have mentioned, on that range? A. Yes; I was up about twice this summer, or three times, that I went through, before that, and I run on quite a bunch of cattle before that. Saw cattle when I was up there; always do in the summer time.

"Q. It is not a range that is set aside for Mr. Moss? A. No, sir.

"Q. All of the people who run cattle in the neighborhood find cattle on the range in that locality right along? A. Yes, sir."

All the other witnesses for the state who spoke on that subject agree with Allen.

The only testimony in support of the allegation of ownership of any of the cattle as laid in the indictment is derived from brands and changes and obliterations of them. No witness testified who identified them except by brand, or imputed to the defendant any actual knowledge of the presence of the cattle on his range, or intimated that he was ever seen in their neighborhood, or ever applied any brand to them.

From a judgment on a verdict of guilty as charged, the defendant appealed.

W. Lair Thompson, of Portland (Herbert P. Welch, of Lakeview, and McCamant, Bronaugh & Thompson, of Portland, on the briefs), for appellant.

George M. Brown, Atty. Gen., and C. H. Leonard, of Burns (T. S. McKinney, Dist. Atty., of Lakeview, and Lionel R. Webster, of Portland, on the briefs), for the State.

BURNETT, J. (after stating the facts as above).

There are numerous assignments of error, but we shall consider only one of them, that challenging the sufficiency of the evidence to sustain a conviction. The defendant was indicted under section 1950, L. O. L., reading thus: "If any person shall commit the crime of larceny by stealing any horse, gelding, mare, mule, ass, jenny, or foal, bull steer, cow, calf, hog, dog, or sheep, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years, or by imprisonment in the county jail not less than three months nor more than one year, or by fine of not less than $50 nor more than $1,000."

There is another statute, section 1954, L. O. L., which is here quoted:

"If any person shall willfully and knowingly make, alter, or deface any artificial earmark or brand upon any horse, mare, gelding, foal, mule, ass, jenny, sheep, goat, swine, bull, cow, steer, or heifer, the property of another, with intent thereby to convert the same to his own use, such person shall be deemed guilty of larceny, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than one nor more than five years."

As the indictment is drawn under the former section, it must be considered solely with reference to that standard; for, as taught in State v. Howard, 41 Or. 50, 69 P. 50, the two offenses are distinct, and a conviction cannot be had under an indictment charging one offense when the evidence points exclusively to the other. There is no evidence in the record of any actual asportation of the property from the custody of the true owner. As stated, all the evidence of property rests upon the testimony concerning the presence of mutilated brands on the animals listed in the indictment. It is said in section 8 of chapter 33, Laws 1915:

"In all suits at law or in equity, or in any criminal proceedings when the title or right of possession is involved, the brand of any animal shall be prima facie evidence that the animal belongs to the owner or owners of the brand, and that such owner is entitled to the possession of the said animal at the time of the action; provided, that such brand has been duly recorded as provided by law."

So far as this statute is concerned, without reference to the presumptions of innocence, regularity of private transactions and the like, and confining ourselves to the mere presence of a brand upon an animal which is all the statute deals with the same presumption must affect any brand coming within the purview of the enactment, viz. a recorded brand found upon the animals in question. The statute says nothing about age or priority of brands, and in construing it or giving value to the prima facie presumption it creates, we cannot read into the law anything of that kind. Viewing the matter, therefore, from the statutory standpoint, when we find two recorded brands upon a cow, the presumptions arising from them balance each other, and the state must produce something to disturb this equipoise adversely to the defendant, if it would prove the property to be that of another, or that the defendant stole it. The prosecution relies upon the testimony about discovering the cattle mentioned in the indictment in company with the defendant's herd and still other cattle on the public domain where all cattle indiscriminately in that region could and did range. They were not in the actual custody of the defendant; neither is there any evidence tending to show that they ever were in his actual control. The question then is whether such testimony is sufficient to turn the scale...