State v. Riggs

• Decision Date: 03 December 1902
• Citation: 8 Idaho 630,70 P. 947
• Parties: STATE v. RIGGS
• Court: Idaho Supreme Court

70 P. 947

8 Idaho 630

STATE v. RIGGS

Supreme Court of Idaho

December 3, 1902

INSTRUCTIONS-ERROR IN GIVING AND REFUSING TO GIVE.-It is error for the court to instruct the jury that if the defendant wrongfully and unlawfully and without the knowledge and consent of the owner, or any person, who could give such consent, but as a trespasser and wrongdoer took, led or drove away the property described in the information, not then intending to steal the same, but that thereafter while still in such wrongful possession of said property he feloniously appropriated the same to his own use, such taking and appropriation constitute upon the part of the defendant the crime of larceny, as fully and completely as though such felonious intention had existed in the defendant at the first taking of such property. Where the facts warrant it, as in this case, it is error for the court to refuse to give an instruction requested by the defendant, to wit: If the jury believes from the evidence that the defendant had no felonious intent to steal the property at the time he took it, then you must acquit, even if you believe he subsequently conceived the intent to appropriate it. Where the evidence wholly fails to show any felonious intent on the part of the accused at the time he takes possession of the property alleged to have been stolen it is insufficient upon which to base a verdict of grand larceny.

(Syllabus by the court.)

APPEAL from District Court, Washington County.

Reversed and remanded.

Frank Harris and A. A. Fraser, for Appellant.

The court erred in refusing to give to the jury the following instructions: "If the jury believe from the evidence that the defendant had no felonious intent to steal the property at the time he took it, then you must acquit, even if you believe he subsequently conceived the intent to appropriate it." (State v. Hines, 5 Idaho 789 51 P. 984; People v. Morino, 85 Cal. 515, 24 P. 892; Martinez v. State, 16 Tex. App. 122; Warren v State, 17 Tex. App. 207.) In the case of lost property, the intent to steal must exist at the instant of the finding of said property. (Beckham v. State, 100 Ala. 15, 14 So. 859; McClain's Criminal Law, sec. 571; Clark's Criminal Law, page 262.) Marks or brands upon an animal are not sufficient to indicate the ownership of strayed or lost property, so that a person can be convicted of larceny of the same. (State v. Swayze, 11 Or. 357, 3 P. 574.) The taking up of lost or strayed animals is not larceny. (Johnson v. State, 36 Tex. 335; Debbs v. State, 43 Tex. 650; Pitts v. State, 3 Tex. App. 210; Beckman v. State, 100 Ala. 15, 14 So. 859; Starck v. State, 63 Ind. 285, 30 Am. Rep. 214; Johnson v. State, 73 Ala. 523; Stuart v. People, 73 Ill. 20; Littlejohn v. State, 59 Miss. 273; Keepy v. State, 14 Ind. 36; Hall v. Commonwealth, 78 Va. 678.) The evidence of possession of stolen property tends to connect defendant with the larceny, when proven, but does not establish the fact of the larceny having been committed. (McClain on Criminal Law, sec. 612; People v. Williams, 57 Cal. 108; State v. Furlong, 19 Me. 225; Jorasco v. State, 8 Tex. App. 540.) "In the first place, such recent possession does not, itself, prove any crime whatever. The corpus delicti must be otherwise established. (McClain's Criminal Law, sec. 616; Smathers v. State, 46 Ind. 447; State v. Taylor, 25 Iowa 273.) The possession being accounted for, it was the duty of the jury to acquit. (State v. Seymour, 7 Idaho 257, 61 P. 1033; State v. Murquardsen, 7 Idaho 352, 62 P. 1034; Galloway v. State, 41 Tex. 289; People v. Naregea, 48 Cal. 123.)

Frank Martin, Attorney General, and J. H. Hawley, for the State.

"When the court fully and accurately instructs the jury on all the issues involved, it is not error to refuse the defendant's requests, even though he may correctly state the law." (State v. Lyons, 7 Idaho 530, 64 P. 236; State v. Dixon, 7 Idaho 518, 63 P. 801.) "On a charge of larceny it is not necessary to the conviction of the accused that he should, at the time of taking the property, have known, or have had reason to believe he knew, the particular person who owned it, or that he should have had the means of identifying him instanter." (Brook v. State, 35 Ohio St. 46; People v. McGarren, 17 Wend. 460; McMullen v. State, 53 Ala. 531; Long v. State, 11 Fla. 295.) "The felonious and fraudulent taking of property with intent to deprive the owner thereof is larceny, even if the defendant did not intend to convert the same to his own use." (People v. Juarez, 28 Cal. 380.) The evidence as disclosed by the record shows a decided conflict as to the circumstances indicating the intent with which defendant took possession of the horse in question and there is ample evidence, as we view it, to warrant the jury in arriving at the conclusion that he took the horse with the intention of appropriating it to his own use, and to permanently deprive the owner of his property. If this be true, under the rulings of this court, as well as the weight of authority, the judgment should not be disturbed upon that ground. (Simpson v. Remington, 6 Idaho 681, 59 P. 360; Bonner v. Powell, 7 Idaho 104, 61 P. 138; People v. Lewis, 124 Cal. 551, 57 P. 470; People v. Un Dong, 106 Cal. 83, 39 P. 12; Cox v. Northwestern Stage Co., 1 Idaho 383; Meyer v. Great W. Ins. Co., 104 Cal. 381, 38 P. 82.)

STOCKSLAGER, J. Quarles, C. J., and Sullivan, J., concur.

OPINION

The facts are fully stated in the opinion.

STOCKSLAGER, J.

William Riggs, the defendant, and appellant here, was accused of the crime of grand larceny. The charging part of the information follows: "The said William Riggs, on or about the fifteenth day of March, A. D. 1901, at the county of Washington, state of Idaho one head of livestock, to wit, one bay horse, of the property of I. F. S. Diven, then and there being, feloniously did steal, take, lead, and drive away, contrary to the form of the statutes," etc. Upon this charge a jury was impaneled, and trial had, which resulted in a verdict of guilty of grand larceny. Bills of exceptions were settled and allowed; a motion for new trial was filed, which was overruled; and from the order overruling this motion this appeal is taken.

The first six assignments of error are based upon the ground that the evidence is or was insufficient to support the verdict. An inspection of the record discloses that this is an important question in this case; hence we will quote extensively from the evidence disclosed from the transcript. The first witness for the prosecution was J. S. Edwards, who sold the horse in controversy to F. S. Diven a number of years ago. Diven was living near Vale at the time. Witness lived twenty-five miles from him. "Never noticed any change in the brand while he was in possession of Mr. Diven. Saw the horse early last spring in Mr. Riggs barn in Weiser. Mr. Riggs was not there. His wife was there, and Mr. George Pence. Mr. Diven and Walter Glenn were with me. Two years ago this spring I heard from Frank Bryant in Huntington. He asked me if I had a certain kind of a horse gone. I thought at the time it was a horse I had sold to parties in Union county. The description suited the other horse tolerably well. I knew Diven had lost his horse, and I knew the man in Union county had lost a horse. I found the Oregon horse a month or six weeks from the time that Bryant first told me that there was a horse in Idaho that suited the description of mine. Can't say how long after I found the Oregon horse before I told Mr. Diven about a horse of that description being in Idaho. These conversations occurred about a year before I came to Weiser and saw the horse. During the year I talked to Diven about the horse being in the possession of Riggs."

Prosecuting witness, Diven, testified: "Bought the horse from Edwards six or seven years ago. Missed him from the range about the 1st of August, 1899. Mr. Edwards first told me about the horse being in Weiser. Did not tell me in whose possession it was. Walter Glenn told me about the horse on many occasions. Showed me letters he had received from Mr. Riggs. When I went to Weiser, Mr. Pence rode up in perhaps one minute after I did. He asked me if that was the brand on the horse. I asked him if he was in charge. He said 'No'; Mrs. Riggs was in charge. Think he sent someone after her. I believe I was asked the question if I was going to take the horse. I said, if there was no objection. She said there was none, and no claim against him." Walter Glenn testified: "Had known the horse five or six years. Knew him in Malheur county. He had John Edwards' brand on him, and vented above it. Came to Weiser on the 2d of April, 1901, and found the horse here. Knows defendant Riggs. Saw him about January 15, 1901, at Steele and Adams' ranch six miles below Vale. Asked him if he knew of a horse in this county with John Edwards' brand on him and two half circles vented. Said he knew a horse of that kind over here. Said he was on island on Snake river, below the slide. He asked me if I knew the horse. I told him I did, and he asked me if there was any mark on the horse that I would remember. I told him there was nothing that I could remember. He said there was a mark on him that anybody in the world would know him. Did not tell me at the time what the mark was. The next time I saw Mr. Riggs I was delivering some horses to him. I told him I had found out about the mark on the horse. It was a wire cut on the front foot on the inside. 'Yes,' he says, 'the horse had that mark.' I asked him if the horse was still over there, and he said, 'No'; he had been moved, with some other horses, down to Brownlee's Ferry, and was in a field down there. On the 15th of January, I told him I wanted to get the horse, and he told me the...