State v. Sorensen

• Citation: 37 Idaho 517,216 P. 727
• Parties: STATE, Respondent, v. WILLIAM SORENSEN, Appellant
• Decision Date: 12 July 1923
• Court: United States State Supreme Court of Idaho

216 P. 727

37 Idaho 517

STATE, Respondent, v. WILLIAM SORENSEN, Appellant

Supreme Court of Idaho

July 12, 1923

CRIMINAL LAW-LARCENY OF TWO ANIMALS-CHARGED AS SINGLE OFFENSE-STATE SHOULD ELECT WHEN TRANSACTIONS ARE SEPARATE.

1. Where an information charges a defendant with the larceny of a cow and her calf, in a single count, and as one transaction, and the evidence discloses that if either of the animals was stolen, it was a separate and distinct offense from the larceny of the other animal, the state should elect upon which transaction it will rely for a conviction.

2. Where a defendant is charged in a single count in an information with having stolen two animals, the taking of which animals, if they were stolen, constituted separate and distinct offenses, and the evidence is insufficient to establish the taking of one of the animals, and the jury are instructed that they may convict if they find the defendant guilty of the taking of either or both animals, the verdict should be set aside, since it cannot be ascertained for which transaction they intended to convict the defendant, or whether some of the jurors did not assent to the verdict on account of the evidence in support of the theft of the animal where the evidence was insufficient to support the charge of having stolen the animal.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. James G. Gwinn, Judge.

Defendant was convicted of grand larceny and appeals. Reversed and remanded, with instructions for new trial.

Reversed and remanded, with instructions.

W. P Hanson, for Appellant.

The identity of stolen property must be established substantially as laid. (Underhill on Criminal Evidence, sec. 296; Bank v. State, 28 Tex. 624.)

An information containing a single count charges but a single offense. Evidence of two separate and distinct offenses cannot be introduced under said count. (State v Gaunts, 60 Kan. 660, 57 P. 503.)

An information must not in the same count charge the defendant with the commission of two or more distinct offenses, and in case it does so it is bad for duplicity. (22 Cyc. 376, 378.)

In an action charging the defendant with the killing of two animals a conviction cannot be had on evidence showing that each was killed at a separate time. (Thomas v. State, 111 Ala. 51, 20 So. 617; Burgess v. State, 44 Ala. 190.)

When two offenses are charged in the same count in the information it is the duty of the state to elect upon which count it intends to rely for conviction. (People v. Williams, 133 Cal. 165, 65 P. 323.)

Failure of the court to instruct the jury that it is the duty of the state to make the election and to further instruct to the effect that they must find the defendant guilty of such offense as it has elected to stand on deprives the defendant of a fair and impartial trial. (People v. Williams, supra.)

A. H Conner, Attorney General, and Jas. L. Boone, Assistant, for Respondent.

Where an information states more than one offense, demurrer is the proper remedy. (C. S., sec. 8870.)

In order to predicate error upon the failure of the trial court to give the proper instructions, it is necessary that the complainant prepare instructions and make offer of them to the court. (State v. Nolan, 31 Idaho 71, 169 P. 295.)

WILLIAM A. LEE, J. McCarthy, Dunn and William E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--On November 21, 1921, an information was filed in the district court of the ninth judicial district, in and for Bonneville county, Idaho, charging William Sorensen, appellant herein, with grand larceny, in the taking and disposing of a certain white-faced cow of the Hereford type, of the age of about three years, particularly describing said animal by certain brands and earmarks, and as having a metal tag in one ear with the name of Alma Findlay stamped thereon, and also of a bald or white-faced sucking calf of the age of about three months, both of said animals being the property of Sylvester Keller, said larceny being committed on or about the tenth day of August, 1921.

A trial was had upon said information, resulting in a verdict of guilty by the jury, and appellant was sentenced to a term of from one to fourteen years in the state penitentiary. Thereafter appellant moved for a new trial, which was denied, and a certificate of probable cause being issued, the cause is here upon an appeal from the judgment and from the order overruling the motion for a new trial.

Appellant makes thirty-two assignments of error, but in view of the state of the record, which fails to show that exceptions were taken to many of the rulings complained of, and the conclusion we have arrived at upon the assignment of the insufficiency of the evidence, it will not be necessary to discuss all of these assignments.

It will be observed that the larceny of the two animals is charged in the information as having taken place on or about the tenth day of August, 1921. By its terms, it charges a single offense; that is, the larceny of a cow and calf, which, irrespective of value, constitutes grand larceny in this state. All the testimony offered at the trial shows that the taking of this cow and calf, if they were stolen, were two separate and distinct offenses, which occurred at different times, and under such different circumstances that had the information disclosed the particular facts surrounding the alleged taking of each animal, the information would have been subject to demurrer under the third subdivision of C. S., sec. 8870. But this defect not appearing upon its face, when that fact appeared from the state's evidence, a motion to require it to elect upon which larceny it relied upon for a conviction should have been sustained if the same had been interposed, which does not appear to have been done.

Instructions Nos. 6 and 9 given by the court on its own motion were in part as follows:

"6. . . . if you find from the evidence in this case that the defendant did steal, take or carry away either the cow or the calf described in the information in Bonneville county, state of Idaho, as charged in the information, and that he thereafter took said cow or calf into Jefferson county, Idaho, then you should find the defendant guilty of grand larceny.

"9. . . . if the proof sufficiently meets the description of either animal, then the defendant may be convicted, provided his guilt as to that particular animal has been proven beyond a reasonable doubt."

The only testimony tending to connect the defendant with the larceny of the calf, aside from the testimony of numerous witnesses that there was such a calf with the cow in question, is found in the testimony of the witness William Lawson, who stated that he lived on Birch Creek, in Bonneville county, about 18 miles from Idaho Falls, and about a mile north and west of appellant Sorensen's ranch, the locality of the alleged larcenies; that he had lived there about eleven years, was a man with a family, and had done a little of everything, including farming and cattle raising; that he first saw the cow, which he describes as a bald or brockle-faced cow of the Hereford type, about the first of May, 1921, on said Birch Creek, where she was grazing on some vacant land of Mr. Keller's, the prosecuting witness; that she had at her side a red bald-faced male calf, about a month or six weeks old; that he continued to see this cow and calf frequently for about a month as he passed along the road going to and from his work; that this cow left the Keller place, but continued to range on Birch Creek, until she finally disappeared about the 12th to the 18th of August; that the calf continued with her until about the 10th or 11th of July, at which time the witness saw the cow at appellant Sorensen's ranch without the calf. He explained that he had gone to Sorensen's ranch because he understood the calf was gone, and "he wanted to see about it"; that two or three days before this, he had seen Mr. Sorensen going down Birch Creek, traveling in a wagon He was then asked, upon direct examination, and replied:

"Q. Just state what you saw at that time.

"A. I was going up to look after some cattle, and I got up on the hill, what they call the Mormon flat, and I saw Mr. Sorensen coming down with a wagon, and I was on a kind of a hill about four or five hundred feet from the road, and I stopped there, and Mr. Sorensen had to go around a sort of a steep hill and I noticed that he had, it looked to me like a couple of calves in the wagon, and I stopped and watched him till he got down the dugway, and it looked to me like they were calves, I know they were calves.

"Q. How were the calves standing or riding?

"A. They was laying in the wagon.

"Q. Can you tell whether they were alive or dead?

"A. I could not say, I suppose they was dead, and it looked to me like he had two or three planks off the lower side of the wagon and on the upper side he had a horse and bridle and saddle.

"Q. What did you do after you saw Mr. Sorensen traveling as you state?

"A. I went down about a half quarter and went up to his corral.

"Q. By the way, which way was he traveling?

"A. He was traveling down the valley, down the creek.

"Q. And how far was that from where his corral was?

"A. It was a quarter, something over a half or three-quarters of a mile, between a half and three-quarters of a mile.

"Q. Did you say you went up to his place? A. I did.

"Q. State what you saw when you got there.

"A. When I got there there was about six or seven head of cattle there and there was one of Mr. Sorensen's cows, an old black, red cow, and this cow of Mr. Keller's around the corral, there they were bellering around there. I couldn't see no tag because the corral is right on his east...