State v. Spencer

• Decision Date: 02 June 1897
• Docket Number: 796
• Citation: 15 Utah 149,49 P. 302
• Court: Utah Supreme Court
• Parties: STATE OF UTAH, RESPONDENT, v. BRIGHAM SPENCER, APPELLANT

49 P. 302

15 Utah 149

STATE OF UTAH, RESPONDENT, v. BRIGHAM SPENCER, APPELLANT

No. 796

Supreme Court of Utah

June 2, 1897

Appeal from the Sixth district court, Garfield county. Hon. W. M McCarty, Judge.

Brigham Spencer was convicted of larceny and appeals.

Affirmed.

D. D Houtz and M. M. Warner, for appellant.

H. C Bishop, Att'y Gen., and Benner X. Smith, for respondent.

On the question of election counsel for the state cited: Anderson v. People, 7 N.E. 265; Herman v. People, 131 Ill. 594; Note to 9 Lawyers' Reports, Anno. 182; Thompson v. State, 22 S.W. 979; Green v. State, 17 S.W. 262; State v. Hodges, 26 P. 676; Armstrong v. State, 13 S.W. 864; People v. McCarty, 18 N.E. 128; State v. Shores, 7 S.E. 421, note; Robinson v. State, 4 So. Rep. 774; Black v. State, 3 So. Rep. 814; State v. Mueller, 38 N.W. 691; Corley v. State, 7 S.W. 255; Roberts v. People, 17 P. 637.

MINER, J. ZANE, C. J., and HART, District Judge, concur.

OPINION

MINER, J.:

Defendant Brigham Spencer, impleaded with Jacob Reese, was jointly informed against by the prosecuting attorney of Garfield county for the larceny of cattle alleged to belong to different parties. Appellant, Brigham Spencer, was tried alone. The complaint was dismissed against defendant Davis, and he was used as a witness upon the trial. It appears that there was a general round-up of cattle to be had at the "gate" in Garfield county, and that many cattlemen, including the defendant, went upon the range and gathered up their cattle, and drove them to the corral or gate, and held them there about a week, and until the round-up was over and each owner had selected his stock from the rest of the herd gathered there. Just prior to this round-up, it was agreed between the two defendants and Davis that as Spencer had been upon the range for years, and knew all the cattle, while Reese and Davis had been in the penitentiary, and were not so well acquainted, Spencer should point out the estrays gathered there at the round-up to Davis, and that Davis should take the estrays so pointed out, and sell them, and divide the proceeds with the other parties. The estrays were brought into the corral by defendants and Davis, with other cattle, in accordance with the conspiracy agreed upon between them. At the round-up the cattle described in the information were pointed out by Spencer to Davis as estrays, and Davis, with the other defendants, cut them out from the herd in the corral, and drove them to the corral of defendant's brother, and these cattle were afterwards sold along with cattle belonging to defendant's brother. One witness testified that the roan steer described in the information was taken about a week after the others were taken. Whether this testimony refers to the time this steer was brought into the corral or taken from the corral, does not clearly appear. Other witnesses place the pointing out of the estrays by Spencer, and the taking of them away from the corral by Davis, at about the same time. After the people had rested their case, defendant's counsel requested the court to require the prosecution to elect whether they would rely for conviction upon the charge of larceny of the roan steer, or of the other stock named in the information. The request was denied, and defendant alleges error upon this ruling. The defendants were charged with the larceny of several head of cattle belonging to several different persons, in one count in the information, on the 26th day of May, 1896. The proofs show that the defendants and Davis entered into a conspiracy by which two of them should drive to a certain corral, at the time of the general round-up, all their stock, including all the estrays that could be found, and that, when the cattle were being cut out by different owners, the defendant Spencer, who was well acquainted with all the estrays on the range, should point them out, and that such estrays should be claimed and taken away by Davis in the alleged interest of parties who ran their stock on the Panguitch range; that, after the estrays were selected, they should be sold, and the proceeds divided between the conspirators. In pursuance of this understanding, the cattle in question were taken by the defendants and sold. This being so, it is not important whether the roan steer was taken away at the same time with the other cattle or not. The stealing of all of the cattle was a part of one and the same transaction, combination, and conspiracy on the part of the defendants and Davis, in furtherance of their common object and agreement to steal all the estrays they and others would place in the corral. The cattle were driven to the corral from different quarters, and then selected by the defendants, stolen, driven away, and sold. Election cannot be required on the ground that distinct offenses are charged, when such offenses are committed by the same acts and grow out of the same transactions, and the same testimony must be required for a conviction; but, where it clearly appears that separate and distinct offenses are intended to be charged in an information, the proper way in which the objection can be rendered available is by motion to quash before defendant has pleaded and the jury sworn, or by demurrer or by calling upon the prosecution to elect in the subsequent proceedings in the case. People v. McKinney, 10 Mich. 54; 1 Chit. Cr. Law, 248; U. S. v. West, 7 Utah 437, 27 P. 84. In the case of People v. McKinney, 10 Mich. 54, the court said: "As a general rule, in cases of felony, when it clearly appears, from the indictment or otherwise, that several entirely distinct felonies are intended to be charged and proven, the court will, in its discretion, either quash or compel the prosecutor to elect; and the same course is sometimes taken in misdemeanors, where several offenses in no way connected are charged. But there is nothing technical in the rule, and in the exercise of this discretion the court will not be governed simply by the question whether several different offenses, in point of law, are charged and intended to be proved, but mainly, as a general rule, by the consideration whether the trial of the several offenses would involve the proof of substantially different transactions, and thereby tend to confuse the defendant in his defense, or deprive him of any substantial right. And therefore, where the several offenses charged, though distinct in point of law, spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction or connected series of facts, the defendant cannot be prejudiced in his defense by the joinder, and the court will neither quash nor compel an election. Such would seem to be the principle of the general rule to be deduced from the cases." 1 Chit. Cr. Law 252, 254, and note; Rosc. Cr. Ev. 231, 232; People v. Sweeney, 55 Mich. 586, 22 N.W. 50; People v. Johnson, (Mich.) 81 Mich. 573, 45 N.W. 1119; State v. Larson, (Iowa) 85 Iowa 659, 52 N.W. 539; People v. Goodhue, 94 Ill. 37.

Appellant's counsel, in his brief, makes some objections to the charge of the court; but as no exceptions were taken to the charge, as appears from the record, we cannot consider these objections.

Defendant also assigns as error the fact that the testimony of Davis the accomplice, was not corroborated by the testimony of any other witness, as provided by section 5049, Comp. Laws Utah 1888. This section reads as follows: "A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." Under this provision of the statute, the corroborating evidence must of itself, and without the aid of the testimony of the accomplice, tend in some degree to...