State v. Potello

Decision Date13 December 1911
Docket Number2235
Citation119 P. 1023,40 Utah 56
CourtUtah Supreme Court
PartiesSTATE v. POTELLO

APPEAL from District Court, Fifth District; Hon. Joshua Greenwood Judge.

P Potello was convicted of grand larceny and he appeals.

REVERSED AND REMANDED.

George B. Greenwood and C. C. Parsons for appellant.

A. R Barnes, Attorney-General, for the State.

STRAUP J. FRICK, C. J., McCARTY, J., concurring.

OPINION

STRAUP, J.

The defendant was convicted of stealing a horse, which, under our statute, is grand larceny. He contends that the evidence is insufficient to sustain the conviction.

The evidence on behalf of the state shows that the horse, with other live stock, got out of the corral of the owner at Frisco and strayed away. No particular search or effort was made to find the horse until about four or five months thereafter, when some one informed the owner that the horse was seen about the defendant's ranch at or near Wah Wah Springs fifteen or twenty miles away. The owner, his brother, and Bert James, went to the defendant's place in search of him. The defendant knew them. They greeted each other friendly. After feeding and stabling their horses in the defendant's corral, and pretending that they themselves might desire to use the corral to gather horses from the range, asked permission to look about the defendant's premises. They were readily permitted to do so; the defendant going with them and showing them about. The owner testified that the defendant freely and courteously showed them everything, and made no concealment of anything. They asked him about his corral, which was newly constructed. He told them it was built to corral wild horses down on the range some distance away, and that there were lots of wild horses there not belonging to any one, and that he was going to get some of them. The owner told him he had better not do that. After looking over the defendant's horses about the premises, one of them asked him where his "broncho" was. He told them he was in the field and pointed to the direction and place where the horse was, about a mile away, and said that he had him hobbled because he was wild. One of them, pretending that he might desire to trade, requested to see the horse. The defendant at first volunteered to go and get him, and then suggested that Bert James, who with the defendant's knowledge, had seen the horse a few days before, should go and get him. He did so. When he returned with the horse, in about fifteen or twenty minutes, the owner, after looking at him, said that the horse belonged to him. Defendant said that he did not and that he belonged to him, the defendant. The owner asked the defendant where he got the horse. He replied, "From the Indians." The owner, "What Indians?" The defendant, "I don't know which Indian." The owner, "There is no Indian around here or from town but what knows" the horse. The defendant: "Well, I don't know which Indian. He may be gone this way or that way to Indian Peak to get pine nuts." The horse had been recently branded with the defendant's brand. The owner called the defendant's attention to an old brand, which, as testified to by the owner, though somewhat indistinct, yet was sufficiently visible to be distinguishable, and said that the old brand was his brand. The defendant replied that the mark shown him was not a brand but a bite. The owner said: "That is not a bite; that is my brand;" and told the defendant that he had better give up the horse. The defendant replied that the would do so if the owner paid him twenty dollars, the amount which the defendant had paid for the horse. This the owner declined, and undertook to lead the horse away; but the defendant forbade him. A wrangle ensued, in which each reasserted his claim of ownership and right of possession to the horse. The owner thereupon said that he would send the sheriff for the horse, and he and his companions departed. He returned to Frisco, and there in a few days obtained a writ of replevin in a civil action and caused a warrant of arrest to issue in a criminal action, in which the defendant was charged with grand larceny. The sheriff testified that in serving the writs and in bringing the defendant to Frisco he told him that he did not steal the horse, and that he bought him from an Indian and gave twenty dollars for him; and upon further inquiry told the sheriff that he bought him from a man named Walker and a man named Davis, and that Walker was an Indian, or looked like an Indian. The evidence, without dispute, shows that Walker was of very dark complexion, and was a Mexican of the half blood. He further told him that Walker and Davis worked about his place building a corral, and that they had been running horses on the range near by, and that he took the horse in question from them for a board bill amounting to about twenty dollars. When the defendant arrived at Frisco, he and the owner took a drink in a saloon, and in a friendly conversation between them the defendant said: "I know the horse is yours, and that the old brand was your brand; but I thought it was a bite." The owner said: "I know you thought it was a bite, but it was my brand."

What became of the civil suit is not made to appear, nor is it material. The criminal action was either dismissed or abandoned, for subsequently the sheriff filed a complaint before a different magistrate charging the defendant with larceny, upon which complaint the defendant was held to answer. The owner testified that prior to the defendant's arrest he had not sold or otherwise disposed of the horse to any one, and that the defendant's possession was without his authority. It was further made to appear that Walker and Davis had been employed at Frisco. A short time before the defendant obtained possession of the horse, they went to the springs and were there seen about the defendant's premises. A number of range horses belonging to different owners, including the owner of the horse in question, ranged in the vicinity of the defendant's ranch some six or eight miles away. There is no direct evidence on the part of the State that the horse when he left the owner's corral strayed to the range, or that he was thereafter seen on the range. There is direct evidence to show that the horse had been on the range the previous year. The owner testified that after the horse got out of the corral others told him that they had seen the horse on the range; and that the natural disposition of a horse, under the circumstances, was to stray back to the range. But neither the owner, nor any other witness in behalf of the State, testified that after the horse got out of the corral he was seen, or found on the range, or that some one there took and drove him away. The direct evidence of the state but shows that the horse got out of the corral, strayed away, and was found in the defendant's possession, who claimed he bought him from an Indian, and who refused to give him up. So that upon the evidence of the state the facts that the horse when he left the corral strayed to or was thereafter on the range, or that some one there took and drove him away, rest on mere inferences.

When the owner and his companions were at the defendant's place and demanded possession of the horse, as heretofore stated, Walker and Davis were then about the defendant's place and heard much of the conversation between the defendant and the owner. The owner did not then know that the defendant claimed that he got the horse from them, or that the defendant, by the term "Indian," meant Walker. Another witness for the state, a livery stable keeper, testified that before Walker and Davis went to the springs they were employed by him about his stable at Frisco. There, prior to their leaving, he overheard a part of a conversation between them and the defendant in which the defendant stated that he would make them a better proposition in running wild horses.

The defendant was a witness in his own behalf. He testified that he was a married man and lived with his wife on a ranch at the springs. There he was employed by the South Mountain Mining Company to look after and protect certain water rights belonging to it. He also did work for it at Newhouse, eight miles away, where it was engaged in mining. Walker and Davis came to his place and told him that they had horses on the range, and that they desired to gather them. They asked permission to build a corral on his premises for such purpose. He consented to that upon the understanding that the corral be left when they got through. They built the corral. The defendant assisted them a short time. They were about the defendant's place several weeks and boarded some of the time with him. They owed him about twenty dollars for board. They brought different horses, as he supposed, and as they told him, from the range, and placed them in the corral. Among them was the horse in question. They tried to sell him to the defendant and offered to sell him to others. They were not able to pay the board bill, and finally tendered the horse in payment of it. The defendant was more or less back and forth from his place to the mine at Newhouse. On one occasion, when the defendant was absent and at the mine, Walker and Davis branded the horse with the defendant's brand. He had no knowledge of it until he returned. They again tendered the horse in payment of the board bill, when he then accepted. In all this the defendant was corroborated by his wife. Other and disinterested witnesses testified that they saw Walker and Davis leading and driving four or five horses at or near the springs, and place them in the defendant's corral, and that among them was a horse answering the description of the one in question. The defendant and another witness testified that the mark on...

To continue reading

Request your trial
35 cases
  • The State v. Swarens
    • United States
    • Missouri Supreme Court
    • 22 Mayo 1922
    ...from recent, exclusive and unexplained possession they must find the defendant guilty. The whole evidence is for the jury. [State v. Potello, 40 Utah 56, 119 P. 1023; Commonwealth v. McGorty, 114 Mass. l. c. 302, (This case is cited in State v. Kelly, supra); Bryant v. State, 116 Ala. l. c.......
  • State v. Laris
    • United States
    • Utah Supreme Court
    • 15 Agosto 1931
    ...proves that the asportation was by him, but it also proves, if believed, that it was done at the instance of the defendant. In State v. Potello the evidence showed that others than the defendant had committed the theft, and the court rightly held that the presumption of guilt arising from p......
  • State v. McCallie
    • United States
    • Utah Court of Appeals
    • 7 Enero 2016
    ...to sustain the verdict, though the State failed to make a case, if he himself proved one for it." Id. (quoting State v. Potello, 40 Utah 56, 119 P. 1023, 1029 (1911) ). But see State v. Kihlstrom, 1999 UT App 289, ¶ 9, 988 P.2d 949 (stating, in reviewing a denied motion to dismiss, that "th......
  • Richey v. State
    • United States
    • Wyoming Supreme Court
    • 18 Octubre 1921
    ... ... Company, another alleged owner. ( State v. Clark, 223 ... Mo. 48; 122 S.W. 665; 18 Ann. Cas. 1120.) The court erred in ... permitting inspection of hides removed from cattle at South ... Omaha, there being insufficient evidence of their ... identification. ( State v. Potello, 40 Utah 56; 119 ... P. 1023.) Shipping records, or records kept by persons in ... charge of stock yards should not be treated as primary ... evidence, and the action of the court below in doing so was ... prejudicial to the defendant. (1 Morewitz Corp., 40; 3 ... Elliott Ev. 1945; Railroad ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT