State v. Price

• Decision Date: 11 January 1954
• Docket Number: No. 1042,1042
• Citation: 265 P.2d 444,76 Ariz. 385
• Parties: STATE v. PRICE.
• Court: Arizona Supreme Court

Page 444

265 P.2d 444

76 Ariz. 385

STATE v. PRICE.

No. 1042.

Supreme Court of Arizona.

Jan. 11, 1954.

I. B. Tomlinson, Bisbee, for appellant.

Ross F. Jones, Atty. Gen., Irwin Cantor and William T. Birmingham, Assts. to the Atty. Gen., Wes Polley, County Atty., of Cochise County, Bisbee, and Lloyd C. Helm, Dep. County Atty., Douglas, for appellee.

STANFORD, Justice.

Defendant (appellant) was charged with the theft of a calf and upon trial the jury returned a verdict of guilty, upon which the court sentenced the defendant to a term of imprisonment of not less than ten nor more than eleven years, from which judgment he has appealed to this court.

Testimony in the case showed that appellant was the owner of a small ranch situated in Cochise County, adjoining the property of the adjacent landowner and prosecuting witness, Andrew F. Hamilton. In April, 1952, Hamilton noticed that a cow and calf were missing from his herd. Later, the cow was found dead on the Hamilton property, and the calf in question was later found on the property of this appellant. Following this, Deputy Sheriff Pete Haverty of Cochise County made a trip with other officers to appellant's ranch and there found three cows and four calves. The three calves with their mothers were branded with the brand of appellant, but the fourth calf was without brand.

Appellant offers assignment of error number one, reading:

'The Court erred in, over objection of Defendant's counsel, admission of State's exhibit No. 1, and allowing it to go to the Jury as a substantive and independent piece of evidence. The correctness of said exhibit never by any means having been established.'

Assignment of error number two reads:

'The Court erred in, over the objections of Defendant's Counsel, admission of State's Exhibit No. 2, on the grounds:

'First, It is not the best evidence and sufficient foundation was not laid for its admission as secondary evidence.

'Second, It is real evidence and not in its original state, being in a changed condition.

'Third, The rule of Standard of comparison could not be applied.'

The third assignment of error is a claim that the testimony adduced at the trial 'failed to prove any venue'. The other assignment submitted relates to the denial of a new trial for defendant.

Assignment of error number one goes to the admission in evidence of a plat showing a section of land, with the ownership thereof as to each 40-acre tract. If it were the purpose of the appellant to object to the plat to prove venue by showing the section, township, and range numbers, i. e., Section 25, Township 18 south, Range 28 east, Cochise County, we find from the testimony that it was wholly unnecessary. Andrew F. Hamilton, who was the owner of the dead cow and the calf in question, testified concerning the dead cow, as follows:

Q. 'And where was the cow located?'

A. 'She was just inside of my pasture in the state land, in the south half section of this 25, almost middle-ways, and about 150 or 200 yards from the fence. Not over that. I don't know the exact distance. Couldn't be over 200 yards from the fence, I don't think. About middle-ways of the south side.'

Hamilton further testified:

Q. 'And will you state, if you know, without recourse of the plat (meaning exhibit A) who the owners of all or parts of section 25, township 18 south, range 28 east, Cochise County, are?'

A. 'I own the south half, sir.'

Q. 'By virtue of what?'

A. 'State land lease. I own the lease on the south half section of 25, and I own the southeast quarter of the northwest quarter of section 25, 40 acres; and the northwest quarter of the northeast quarter of section 25. * * *'

Following this, witness Hamilton testified as to the ownership of other lands, including land of this appellant.

This court takes judicial notice of the fact that the township and range referred to by witness Hamilton is in Cochise County, Arizona.

Further, on the subject of the admission of the plat, the plat was used more as a blackboard than as a map, and different colored crayons were used by certain witnesses to illustrate locations, and the attorney for appellant in cross-examination of the State's witnesses used the plat. We find no error in receiving in evidence this exhibit one.

Referring to the basis for assignment of error number two, which is a piece of cowhide containing the brand called 'A swinging H', appearing on the brand certificate of the Livestock Sanitary Board as Hamilton further testified:

Q. 'And sometime subsequent to April, 1952, did anything peculiar or unusual happen to any of those animals?'

A. 'Yes, sir. I turned up missing a cow and a calf.'

Hamilton identified the dead cow as his own cow, and the calf, which was without a mother in the pasture of this appellant, as his calf. Frank Price, a neighbor, who viewed Hamilton's stock almost daily, testified that the dead cow was Hamilton's and that this cow had a calf marked similarly to the dead cow. Hamilton, and several other witnesses testified to the markings of the cow and the nearly identical markings on the calf. At the close of the case, the jurors were allowed to see the calf in question, which was in a trailer behind the courthouse.

Shortly after the discovery of the dead cow, Frank Price and Deputy Sheriff Pete Haverty, in company of others, went to see the dead cow, and while there in their presence, Haverty cut out a portion of the hide containing the brand, and this was admitted in...