State v. Parker

• Decision Date: 09 August 1932
• Docket Number: 1749
• Citation: 13 P.2d 641,44 Wyo. 478
• Parties: STATE v. PARKER, ET AL
• Court: Wyoming Supreme Court

13 P.2d 641

44 Wyo. 478

STATE v. PARKER, ET AL

No. 1749

Supreme Court of Wyoming

August 9, 1932

APPEAL from the District Court, Natrona County; C. D. MURANE, Judge.

George Parker and another were convicted of larceny, and the named defendant appeals.

Affirmed.

The case was submitted for the defendant and appellant on the brief of C. G. Cypreansen and W. B. Holliday, both of Casper Wyoming.

Venue is material and must be proven. 8 R. C. L. 98; Art I., Sec 10 Const. Venue was not proven in the present case; it cannot be established by assumed judicial knowledge of boundaries. 15 R. C. L. 1085; Herman case, 33 Wyo. 63. Value was not sufficiently proven to sustain the judgment; it is an essential element in the present case. 17 R. C. L. 59, 60 70. Market value at the time and place of the alleged larceny is the only proper evidence. Underhill's Cr. Ev., (3d Ed.) 672. Proof of taking casing-head gasoline does not sustain the charge of taking gasoline, and is a fatal variance. 17 R. C. L. 69. The court's instruction should have been limited to the article charged in the information, to-wit, "gasoline." The jurors decided the value in this case by lot, having agreed before the lot to abide the result, and they having done so, constitutes error. 3 Wharton C. P. 2231. There was no proof of non-consent of the owner. 25 Cyc. 126; 17 R. C. L. 13-53; Underhill's C. P. 665; Case v. State, (Okla.) 139 P. 322; Perry v. State, (Neb.) 73 N.W. 27. A conviction contrary to the weight of the evidence will be set aside when any of the essential allegations of the indictment remain unproven. 3 Wharton C. P. 2198. The judgment should be set aside and appellant granted a new trial.

The case was submitted for the State on the brief of J. A. Greenwood, Attorney General, Richard J. Jackson, Deputy Attorney General, George W. Ferguson, Assistant Attorney General, and R. Dwight Wallace, all of Cheyenne, Wyoming.

A verdict based upon conflicting evidence will not be disturbed if there be evidence to support such verdict. Jones v. State, 26 Wyo. 293; State v. Munsinger, 39 Wyo. 98; Cameron v. State, 36 Wyo. 140; State v. Weekly, 40 Wyo. 162. Venue need only be proved by a preponderance of evidence and proof need not be direct but may be circumstantial so that the jury may reasonably infer the venue from the evidence as a whole. McFetridge v. State, 32 Wyo. 185, 16 C. J. 768; West v. Comm., (Va.) 99 S.E. 654; State v. Meyer, (Ia.) 124 A. S. R. 291; State v. Dooley, (Wash. ) 144 P. 654; Underhill Cr. Ev., Sec. 36; 4 Elliott, Sec. 2714; 13 Enc. of Ev. 931; Wilson v. State, (Ark.) 36 S.W. 842; Smith v. State, (Fla.) 10 So. 894; People v. McIntosh, (Ill.) 90 N.E. 180; Stubblefield v. Comm., (Ky.) 246 S.W. 44; Herman v. State, 33 Wyo. 58; Wolfe v. State, 38 Wyo. 136. The market value of the gasoline taken was proven by competent testimony. Davis v. Graham, 31 Wyo. 239; Underhill's Cr. Ev., p. 671; Chamberlayne's Mod. Law of Ev., Sec. 2117. Any variance between the information and proof must be material and to defendant's prejudice, to be ground for reversal or acquittal; the variance between casing-head gasoline and gasoline if in fact a variance, is neither material nor prejudicial. 33-416 Wyo. R. S. 1931; Harris v. State, 23 Wyo. 487; Richey v. State, 28 Wyo. 117; State v. Hiteshew, 42 Wyo. 147; Petroleum Co. v. Aiken, (Tex.) 289 S.W. 152. An instruction not excepted to at the trial cannot be attacked upon appeal. Cook v. Territory, 3 Wyo. 110; Fletcher v. State, 20 Wyo. 284. Affidavits of jurors will not be received to impeach their verdict. Morris v. State, 39 Wyo. 157. Points not raised in specifications of error are deemed to be waived. State v. Crump, 35 Wyo. 41, 36 C. J. 757; Griffith v. State, (Ill.) 72 N.E. 563; Barnes v. People, (Ill.) 65 Am. Dec. 699. Direct proof of non-consent of the owner in larceny cases is unnecessary; his consent may be inferred from the circumstances and indirect evidence. McAdams v. State, 23 Wyo. 294; State v. Faulk, (S. D.) 116 N.W. 72; George v. U.S. 97 P. 1052. The circumstances of the alleged larceny, as shown by the record, viz: the lateness of the hour; the notification of authorities, and the general activity of employees of the refining company in seeking the cause of interference with line pressure, clearly indicate non-consent to the taking of the gasoline.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

Review of the record in this case is sought by direct appeal from a judgment of the District Court of Natrona County. George Parker and another were by an amended information charged with the crime of grand larceny, the property alleged to have been stolen being 335 gallons of gasoline from the goods of the Midwest Refining Company, valued at $ 30.15. Upon trial had, both defendants were found guilty and the value of the gasoline taken was assessed at $ 11.00. Judgment was entered on the verdict sentencing the defendants to terms in the Natrona County jail. This appeal is taken by Parker only. The facts established by the record are substantially these:

A pipe line is used by the Midwest Refining Company to carry to the city of Casper the gasoline extracted at the Midwest gas plant from the casing-head gas taken from the producing wells in Salt Creek. On the evening of August 2, 1930, an employe of the company aforesaid, specially detailed to observe the pressure registered in this pipe line on a gauge affixed to it for that purpose in Midwest, Wyoming, about 11:30 o'clock, noted that the gauge indicated a substantial drop in pressure. The supervising officials of the company were immediately notified and a group of them, with two deputy sheriffs, drove to what are known as the Beaton Corrals, located some ten or twelve miles south of Midwest, and not far from the highway between that place and Casper.

Upon the arrival of these men at this point, they found the defendants in the act of taking gasoline from the pipe line and running it into drums standing on a truck nearby, making use of a garden hose attached to a bushing in the line for the purpose. Six large drums had already been filled with gasoline and one partially filled. One of the defendants was discovered sitting on the ground with a wrench on the valve that came out of the pipe line. The other defendant, Parker, was found on the truck handling the hose that was used for filling the drums. The defendants were placed under arrest and removed to Casper. The trucks and the drums of gasoline also were taken into the possession of the officers.

The contention is made that the State failed to prove the venue of the place where the larceny was committed. In McFetridge v. State, 32 Wyo. 185, 231 P. 405, 234 P. 505, 512, concerning the manner of such proof, it was said:

"The principle, however, seems to be well established that direct evidence is not necessary to prove venue, but that, like any other fact, it may be established by proof of facts and circumstances from which it may reasonably be inferred. 16 C. J., Sec. 1573, pp. 768, 769; 1 Wharton, Crim. Ev., 10th Ed., Sec. 108."

Applying the principle of judicial notice to the proof of venue in Herman v. State, 33 Wyo. 58, 236 P. 507, 508, this language was used:

"It is contended that there was no evidence to prove venue. Soon after the shooting, the body of Anderson was carried to the room to which we have referred, and there was positive evidence that that room is in Natrona County, but no direct evidence that the place where the shooting occurred, some 12 feet outside the room, is in the same county. It is shown, however, that the shooting was in Lavoye, a place having streets, stores, banks, etc., located at or near the point where the Salt Creek highway crosses Castle Creek. We perceive no difficulty in holding that we may take judicial notice that the place of Lavoye, so described, is in Natrona County."

See also Wolfe v. State, 38 Wyo. 135, 264 P. 1033.

There is testimony in the record that the Beaton Corrals are about two miles south of New Lavoye and approximately ten or twelve miles south of Midwest proper; that they are on the west side of the highway from Casper to Midwest, about 400 or 500 yards from it; that the fourinch pipe line (the pipe line involved in this matter), called in the record the casing-head gas line, is but ten or fifteen feet from the west side of the corrals. Under the previous decisions of this court as applied to this testimony, the point that venue was not proven is without merit. Especially is this so when we find further undisputed testimony:

"Q. This corral (Beaton Corral), what county and what state is it in?

A. Natrona County, Wyoming.

Q. Where this occurred, where you saw Mr. Parker and Mr. Bush that night?

A. Yes."

The courts of this state judicially notice the boundaries of the several counties therein. Robinson Mercantile Co. v. Davis, 26 Wyo. 484, 187 P. 931. See also Ford v. State, 52 Okla. Crim. 321, 5 P.2d 170 (Okla. Cr. App.); 16 C. J. 770, Sec. 1575; 23 C. J. 83, Sec. 867. See also, generally, on this question: State v. Eppers, 138 Ore. 340, 3 P.2d 989; State v. Caskey, 200 Iowa 1397, 206 N.W. 280; Tolston v. State, 42 S.W. 988 (Tex. Cr. App.); Fletcher v. Commonwealth, 210 Ky. 71, 275 S.W. 22.

The Chief Engineer of the Midwest Refining Company testified that he was Acting General Superintendent of the gasoline and gas department, had made a study of the price of gasoline, was familiar with it and could tell the jury the value of the gasoline taken out of the pipe line by the defendant on August 2, 1930 and, over objection, was allowed to do so. It appeared that the witness had consulted a nationally accepted trade journal, which published the price of oils, petroleum casing-head gasoline,...