State v. Ward

• Decision Date: 15 March 1886
• Citation: 10 P. 133,19 Nev. 297
• Parties: STATE v. WARD.
• Court: Nevada Supreme Court

10 P. 133

19 Nev. 297

STATE v. WARD.

Supreme Court of Nevada

March 15, 1886

Appeal from judgment of Fourth judicial district court, Elko county upon a verdict convicting the defendant of grand larceny.

J. H Rand, for appellant.

The Attorney General, for the State.

LEONARD J.

Appellant was convicted of the crime of grand larceny. He was jointly indicted with John Hennessy, but had a separate trial.

1. The demurrer to the indictment was properly overruled. The indictment did not charge the commission of two distinct offenses, to-wit, grand and petit larceny. The charge was that defendants willfully and feloniously stole, took carried, led, and drove away two horses, described, of the value of $150, and at the same time and place, willfully and feloniously stole, took and carried away, together with the said two horses, one saddle, of the value of $25, and one blanket, of the value of $8, all the property of W. B. Gibbs. The stealing of the horses, saddle, and blanket at the same time and place constituted but one crime, and but one offense was charged. A trial and acquittal upon an indictment charging larceny of the horses only would have been a bar against a prosecution for stealing the saddle and blanket. Waters v. People, 104 Ill. 544; State v. McCormack, 8 Or. 236.

2. It is strenuously urged that the court erred in refusing to grant a new trial by reason of alleged misconduct of the jury in separating, without leave of the court, after retiring to deliberate upon their verdict, and in talking with persons not members of the jury, by which misconduct appellant was prevented from having a fair consideration of his case. The affidavits in support of the claim of misconduct are numerous, and those against it are equally so. We have examined them carefully, but shall not undertake the task of reviewing them in detail. It is undoubtedly the law that the defendant in any criminal case is entitled, as a matter of right, to require, in the first instance, a compliance with the ordinary forms of law to secure him a fair and impartial trial; and if the provisions of law intended for his security are disregarded, he may require satisfactory evidence from the state that he has not been injured by reason of such non-compliance. Conceding that there was a separation, and that the wife of one of the jurors spoke to her husband in the presence of three other jurors, but not about the case; and that, under the circumstances shown, the burden of proving that there was no prejudice to appellant resulting from the irregularities complained of was upon the state,--we feel certain that the court did not err in refusing a new trial upon this ground. The showing made by the state convinced the court below, as it does us, that there was no tampering with any juror; that no juror had any communication with any person other than a juror in relation to the case, or received any impressions except those derived from the trial. State v. Jones, 7 Nev. 413; Davis v. State, 3 Tex.App. 101; State v. Harris, 12 Nev. 421.

3. It is contended that the court erred in giving and refusing certain instructions to the jury. Appellant, when testifying as a witness in his own behalf, admitted that he and Hennessy went from Wells, on the Central Pacific Railroad, to the ranch of Gibbs, about 15 miles distant, according to a previous arrangement so to do; and at about 9 o' clock in the evening, without consent of the owner, took the two horses, saddle, and blanket described in the indictment from the premises where they were kept, rode them to a place about 20 miles from the state line, and then returned to a point 12 miles from Toano and the railroad, where they took the saddles from the horses, left them in the sage-brush beside the road, and abandoned the entire property. He testified that neither he nor Hennessy intended to steal the property; that they only took it to use three or four days, to enable them to leave the state; that the intention was that it should be returned to Gibbs; that he made an arrangement with one Jack Thomas, at Wells, the night before the property was taken, to meet him and Hennessy near Six Mile canon, and take the propertyback to Gibbs; that Thomas did not meet them as agreed, and not wishing to ride the horses into Toano, they left the property, thinking Thomas would get it, and if he failed to do so, the horses would go home anyway.

The court instructed the jury that if they were satisfied, beyond a reasonable doubt, that appellant, in connection with Hennessy, took the horses with the intention of permanently depriving the owner of his property, and without intending to return them, it was a felonious intent, and they should find him guilty; that if he took them with the intention of using them temporarily only, and then returning them to their owner, he was not guilty; that in order to justify the jury in convicting appellant, it was not necessary they should find that he intended to convert the property to his own use, that is, to keep it permanently himself, or dispose of it to others; that the jury were to determine whether or not he made any arrangement with Thomas to take the horses back, but that such arrangement, if made, would amount to nothing, unless entered into in good faith, and appellant really and honestly believed, at the time he took the property, that Thomas would meet him and take the horses back to the owner; that if he took them with the intention of permanently depriving the owner of them, and without really intending to return them, a subsequent abandonment of them, and allowing their owner to recover them again, would not prevent such taking from being grand larceny. On behalf of appellant the court charged the jury that they should acquit unless they believed from the evidence admitted that appellant, when he took the property, intended to deprive the owner of the same permanently.

From these instructions it is urged that "the jury might have understood that, in order to escape a verdict of guilty, it was necessary that appellant should have intended to return the horses to the possession of Gibbs, and that such is not the law." It is not claimed that it was error to tell the jury that "the appellant was not guilty if he took the horses with the intention of returning them to their owner, after a temporary use," as he had testified his intention was. That was good law, and favorable to him. It was in perfect accord with appellant's theory of the case; and if his counsel thought that from the court's instruction, although correct so far as it went, the jury might think it was necessary that appellant should have intended to return the property, and that such was not the law, he should have asked, in plain language, an instruction covering the point now made.

In order to find appellant guilty, the jury were bound to believe, from all the evidence, that he intended to deprive the owner permanently of his property. The jury did not believe that appellant intended to return it. Having discarded that theory, the intention had to be gathered from acts alone. Now, it may be that a person might take another's property, and carry it away, without intending to return it, but without intending a permanent deprivation. His acts, including his treatment of the property, and the circumstances surrounding the taking, might show the latter intention in the absence of the former. But since the jury, after discarding appellant's alleged intention, had to decide, by acts alone, as to his real intention at the time of taking; and since he is presumed to have intended the natural consequences of his acts, in the absence of an intention to return the property,--if the jury were satisfied, beyond a reasonable doubt, that he used the property in such a manner that the owner would be likely to be permanently deprived of it, the presumption is that he intended to so use it, and the burden was upon him to rebut such presumption by competent evidence. So the jury were charged by appellant's eleventh instruction, which declared the law correctly in case he did not intend to return the property.

It is contended, also, that the court erred, in refusing to give instructions 2, 6, 7, 8, and 9 asked by appellant. Every correct principle of law embodied in the second request was given by the court in other instructions. But it contained the following, which was properly refused: "*** and if, from all the evidence, the jury have a reasonable doubt whether or not defendant intended to steal the property, or any part thereof, or only to use it for a limited period of time, and then allow it to return, or be returned, to the owner, then you should acquit the defendant." That would have been a charge to acquit if they found that he intended to use the property temporarily, and then abandon it, after several days' use, a long distance away, regardless of whether he expected, or had reason to expect, that the owner would recover it in the natural course of events, or at all. In regard to this it is enough to say that from such intended use, abandonment, reckless exposure to loss, and other facts in the case, a jury might well find an intention to permanently deprive the owner of his property; and it was not for the court to say that a permanent deprivation was not intended, simply because appellant's primary intention was to use it temporarily, and then forsake it, if such it was.

By the sixth instruction the court was asked to charge that appellant was entitled to an acquittal unless the jury were satisfied, beyond a reasonable doubt, that he and Hennessy "intended to assume property in the property taken, or some portion thereof, or to permanently deprive the owner of his property, or some part thereof." As before stated in...