State v. Owens

Decision Date18 October 1979
Docket NumberNo. 12272,12272
Citation619 P.2d 787,101 Idaho 632
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Dianne E. OWENS, Defendant-Appellant.
CourtIdaho Supreme Court
Eli Rapaich, Lewiston, Gary E. Lofland, Boise, for defendant-appellant

David H. Leroy, Atty. Gen., Lynn E. Thomas, Howard W. Carsman, Deputy Attys. Gen., Arthur J. Berry, Asst. Atty. Gen., Boise, for plaintiff-respondent.

BAKES, Justice.

Defendant appellant Dianne Owens ran a cattle ranch in 1974 and 1975 in the Upper Ford Creek Road area of Clearwater County, near Orofino, Idaho. In 1974 Mike and Jeannine Martin leased 160 acres of grazing land on Upper Ford Creek Road about 0.8 miles below Owens' ranch. In late October, 1974, the Martins brought their animals out of pasture from their Upper Ford Creek pasturage and discovered that a white faced, horned, brindle colored heifer cow with their brand lightly applied was missing from the herd. Owens was subsequently charged with theft of the heifer and convicted at a jury trial. She brings this appeal from the judgment of conviction for grand larceny entered following the trial. We affirm.

Defendant Owens raises numerous issues on appeal. Her primary contention is that the state's evidence was insufficient to prove the corpus delicti, i. e., that the crime charged grand larceny actually occurred. She argues that as a result of the state's failure to introduce evidence sufficient to support a finding that the heifer in question was the subject of a larcenous taking it was error for the trial court (1) to deny her motion for acquittal made at the close of the state's case in chief, and (2) to instruct the jury that an unexplained possession of recently stolen property by the defendant permits the jury to infer that the theft was committed by the defendant.

The defendant's plea of not guilty placed in issue every material allegation made in the indictment. I.C. § 19-1715; State v. Cutler, 94 Idaho 295, 486 P.2d 1008 (1971). One of the material allegations placed in issue by a plea of not guilty is that of the corpus delicti of the crime. State v. Cutler, supra. In a larceny charge, the elements which must be proven include the taking, carrying, driving or leading away, without The evidence presented by the state in its case in chief tending to prove that the heifer was larcenously taken by Owens was as follows. Mike and Jeannine Martin, the animal's owners, testified that they put the heifer out to summer pasture on their Upper Ford Creek Road land the first week in May of 1974 subsequent to their repairing the pasture's fences, as required by their lease agreement. Mike Martin testified that the last time he saw the animal was in the second week of october, 1974, when he visited the pasture to check his herd. When the Martins removed their animals from pasture in the last week of October they were unable to find the heifer. The Martins testified that they checked their fences at that time and found them to be in good condition. They stated that they searched their pasture and neighboring lands and made inquiry of ranchers in the area, but were unable to locate the animal. The animal was reported as lost to local law enforcement agencies in early November.

permission, of personal property of another, with the intent to permanently deprive the owner thereof. I.C. § 18-4601; State v. Jesser, 95 Idaho 43, 501 P.2d 727 (1972). Direct or circumstantial evidence which satisfies the factfinder beyond a reasonable doubt that the crime charged has been committed establishes the corpus delicti. State v. Johnson, 96 Idaho 727, 536 P.2d 295 (1975); State v. Kombol, 81 Idaho 530, 347 P.2d 117 (1969).

Brady Jones, a 16 year old youth who occasionally worked for defendant Owens, testified for the state in its case in chief that while working for defendant Owens she and one Rick Pederson told Jones that they had discovered a cow alongside Ford Creek Road and had loaded it onto Owens' pickup truck. Jones further testified that the defendant Owens and Rick Pederson had taken the cow to the ranch of one David Hueth in Weippe, Idaho. Jones testified that he was told the animal was pregnant and that Owens was to receive the calf from Hueth when it was born.

David Hueth testified for the state on direct examination that he received the cow from defendant Owens in late 1974 or early 1975 in exchange for some work he had done for the defendant. A bill of sale from the defendant to Hueth representing sale of the animal to Hueth was admitted into evidence. Hueth testified that the animal was with calf when he received it and that he agreed to give Owens the calf when it was born. Investigation revealed that the animal Hueth received from Owens bore a lightly applied brand registered to the Martins. The Martins identified photographs of the animal Owens sold Hueth as being their animal they had reported missing.

There was substantial evidence presented by the state in its case in chief which, if believed by the jury, would support a finding that the Martin heifer was taken by the defendant Owens without the Martins' permission and with an intent to permanently deprive the Martins of possession of it. In Idaho, theft of a cow constitutes grand larceny. I.C. § 18-4604(3); State v. Harrington, 92 Idaho 317, 442 P.2d 453 (1968). The trial court's denial of defendant's motion for judgment of acquittal made at the close of the state's case in chief was not error.

Likewise, Owens' argument that the trial court erred in instructing the jury that the defendant's unexplained possession of recently stolen property may raise an inference that the defendant committed the larceny is without merit. Once the state submitted evidence which would support a finding that the heifer was stolen, it was not error for the trial court to give the instruction. State v. Ponthier, 92 Idaho 704, 449 P.2d 364 (1969); State v. Haggard, 89 Idaho 217, 404 P.2d 580 (1965); see State v. Sullivan, 34 Idaho 68, 199 P. 647 (1921). The defendant's participation in a theft may be inferred from the defendant's unexplained possession of recently stolen property. United States v. Trice, 476 F.2d 89 (9th Cir. 1973); United States v. Martin, 459 F.2d 1009 (9th Cir. 1972), cert. denied 409 U.S. 864, 93 S.Ct. 155, 34 L.Ed.2d 111 (1972). Cf. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973) (where evidence established that defendant Defendant Owens also assigns as error several rulings by the magistrate made in binding Owens over to district court for trial. She argues that the magistrate erred in failing to dismiss the criminal complaint filed against her. She argues that the complaint failed to adequately describe the animal in question ("one horned, brindle, heifer cow, being the property of Jeannine Martin") and to properly specify the time that the larceny occurred ("between the middle of October, 1974, and the end of February, 1975").

charged with receiving stolen property possessed recently stolen Treasury checks payable to persons he did not know and there was no plausible explanation for such possession consistent with innocence, traditional common law inferences arising from possession of recently stolen goods satisfied reasonable doubt standard and comported with due process).

A legally sufficient complaint need only be a simple and concise statement of the essential facts constituting the offense charged. I.C.R. 3. I.C. § 19-3901 provides that the criminal complaint must specify "such particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint." However, it is not necessary that the complaint contain a formal or detailed description of the offense charged. "(A)ll that is required is a general description or designation of the offense so that the defendant may be given a fair opportunity to know, by proffered preliminary examination, the general character and outline of the offense for which he is to have an examination." State v. McKeehan, 91 Idaho 808, 818, 430 P.2d 886, 896 (1967); State v. Woodward, 41 Idaho 353, 238 P. 525 (1925); State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909). The complaint filed against Owens satisfies that standard.

Owens also argues that the state's evidence presented at the preliminary hearing did not demonstrate probable cause that a larceny had been committed. It is argued that the state's evidence showed merely that the defendant possessed a heifer belonging to Mike and Jeannine Martin, but did not prove that Owens participated in the theft as charged.

At the preliminary hearing the state is not required to prove the accused's guilt beyond reasonable doubt; it need only prove that a crime was committed and that there is probable cause to believe the accused committed it. O'Neill v. State, 92 Idaho 885, 452 P.2d 989 (1969); I.C. §§ 19-804 and -815. The decision of a magistrate that there exists probable cause to bind a defendant over to district court for trial on the charges should be overturned only on a showing that the committing magistrate abused his discretion. State v. O'Mealey, 95 Idaho 202, 506 P.2d 99 (1973); Carey v. State, 91 Idaho 706, 429 P.2d 836 (1967).

We find that the evidence presented by the state at the preliminary hearing supports the magistrate's decision that the Martin heifer was subject of a theft and that there was probable cause to believe that defendant committed that crime. The state showed that the heifer reported lost by the Martins was the same animal as that received by David Hueth from defendant Owens in exchange for labor on the Owens ranch. Wade Ralston of the Clearwater County sheriff's office testified that in the course of his investigation of the loss of the Martin's heifer, he learned that defendant Owens had taken the animal and sold it to Hueth. Ralston's examination of the animal sold to Hueth...

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