State v. Webber
| Citation | 116 P.2d 679,112 Mont. 284 |
| Decision Date | 28 June 1941 |
| Docket Number | 8162. |
| Parties | STATE v. WEBBER. |
| Court | United States State Supreme Court of Montana |
Rehearing Denied Sept. 17, 1941.
Appeal from Fifth Judicial District Court, Madison County; Henry G Rodgers, Judge.
Joseph W. Webber was convicted of receiving stolen property, and he appeals.
Affirmed.
Miles J. O'Connor, of Livingston, and Frank E. Blair, of Virginia City, for appellant.
John W Bonner, Atty. Gen., John M. Comfort, of Virginia City, Fred Lay, Asst. Atty. Gen., and W. D. Rankin, of Helena, for respondent.
The defendant charged by information was convicted for receiving stolen property and sentenced to a term of three years in the State penitentiary. He has appealed from the judgment.
No issue is made as to the sufficiency of the information to sustain the charge made, and the information will not be repeated here.
The principal contentions of the defendant are:
(1) That the corpus delicti was not established;
(2) That the court erred in its instruction No. 8;
(3) That there was insufficient evidence to sustain the verdict;
(4) That the verdict and judgment are contrary to law;
(5) That if defendant be guilty of any crime it is that of larceny, and that being true he could not be guilty of receiving stolen property from himself.
The evidence introduced on behalf of the state may be summarized as follows: Felix Dufrene, an employee of Mrs. Josephine Howard, the owner of a ranch about five miles out of Pony Madison county, Montana, on which she ran a small herd of cattle, having noticed car tracks along a private roadway on the Howard premises followed the trail of the car to where he found the carcass of one of Mrs. Howard's calves and the head and feet and entrails of another calf. Dufrene noticed where one of the calves had been dragged for two or three hundred feet, and he found the head, feet and entrails just referred to in a "wash-out." Dufrene reported to Mrs. Howard what he had discovered and she sent a Mr. Knight who was staying on the ranch, to Pony with instructions to telephone the sheriff at Virginia City. Both Mrs. Howard and Knight traded at defendant's store in Pony and Knight went there to make his telephone call. He advised the sheriff of the reason for the call and arranged to meet him on the highway leading to the Howard ranch. The defendant overheard at least a part of the phone conversation, and made some comment relative thereto. Dufrene remained at the scene where the calves had been killed until the arrival of the sheriff. The carcass of one calf had been partly skinned and left, but the body of the other calf and the hide were missing. These discoveries were made on November 12, 1939.
November 23rd one Edward Olind, who with a brother, while on the way horseback to his brother-in-law's for Thanks-giving dinner was overtaken on the way by his brother-in-law who advised them to leave their horses in the barn of an abandoned farm and go the rest of the way with him in his car. The Olind brothers went into the barn to leave their horses and Edward discovered two quarters of a beef in an oats box in the barn, which discovery he reported, on the advice of his father, to the stock inspector.
November 28th one Leonard Stone was arrested for the killing and theft of the Howard calf, purchased by the defendant, admitted his guilt and was sentenced to three years in the penitentiary, and implicated the defendant. The sheriff and county attorney of Madison county and a state stock inspector went to Pony to interview the defendant, taking Stone along in the custody of a deputy sheriff, but Stone was left outside in the car with the deputy while the others interviewed the defendant. It appears that the sheriff had previously inquired of the defendant if Stone had attempted to sell him any meat, which question the defendant answered in the negative and stated further that everyone in Madison county knew Leonard Stone to be a thief, that he had no reputation and no business man would have any dealings with him. When the sheriff and the other parties went to see the defendant on November 28th, the stock inspector testified that he, in the presence of the sheriff and county attorney had the following conversation with defendant:
When the stock inspector and sheriff and county attorney had this conversation with the defendant in his apartment in the rear of his store at Pony, Stone and a deputy sheriff by the name of Whiting remained in the car outside and when the defendant made the foregoing statement in the presence of the parties mentioned, the stock inspector said to the defendant that he had a witness outside that he, the stock inspector, would like to bring in and the defendant told him to bring him in. Stone was brought in and confronted the defendant. Stone at that time and in the presence of the officers mentioned said to the defendant,
Shortly after Knight telephoned the sheriff about the killing of the calves the defendant went to see a brother-in-law of Stone's by the name of Lau, who worked in a garage not far from defendant's store, and Lau testified that the defendant told him of the telephone conversation that Knight had had with the sheriff, and the defendant wanted Lau to get word to Stone to be on the dodge and suggested that Lau drive to the Revenue Mine, some four or five miles out of Norris, where Stone worked, and tell him about Knight's conversation with the sheriff. Knight testified that he had no notion whatever as to who killed the calves when he telephoned the sheriff, and no names were mentioned in the phone conversation between Knight and the sheriff.
When the sheriff, stock inspector and the other parties had the conversation with the defendant on November 28th, the county attorney testified as to this conversation between himself and the defendant: "Why did you send the boy to get Leo Lau to tell Leo Lau to come down, that you wanted to see him? In response to that Mr. Webber said, 'I did send the boy up.' Mr. Comfort then said, In reply to that Mr. Webber said, that he figured that Leonard Stone was in trouble and he didn't want to get mixed up in it himself, it would hurt his business, so he thought maybe it was all right to tell Leonard to get out. When I said to Mr. Webber, 'Mr. Webber, the sheriff was down here in the first place and he talked to you and he asked you if you bought any meat from Leonard Stone and you told him "No".' In reply to my statement Mr. Webber said, 'Yes, that is what I told him, "I did not"."'
Lau, it seems, was quite friendly with the defendant and the court permitted him, even though a state witness, to be examined by the state as a witness antagonistic to the state.
On December 18, 1939, the defendant went to see Mrs. Howard, the owner of the calves, and paid her $25 for the carcass of one which he had purchased from Stone, and dictated a letter which Mrs. Howard signed and which she delivered to the defendant to be mailed to the county attorney. The letter was in the following language:
"I am writing to let you know that Mr. Joe Webber came up to the ranch and settled with me for the veal which Leonard Stone sold to him. And he gave me a check for $25.00 this morning.
And Mr. Joe Webber tells me that he was perfectly innocent when he bought the veal as Mr. Stone told him he got it from Leo Lau. And I think he was innocent." The defendant was placed under arrest the same day.
It appears from the record that Stone had been a customer of the defendant for a number of years, and a year or two before Stone butchered the calves involved in the action the defendant attached Stone's wages due from the Revenue Mine, and Stone appears to have been continually hard-up and wasteful of what money he earned or obtained, and on November 10, 1939, he took a pump to the defendant's store which he desired to sell to the defendant. After some negotiations the defendant bought the pump for $25, paying part cash and applying part on Stone's account. After that transaction was consummated, Stone testified that the defendant said to him that he would pay him $25 for a couple of beef and the defendant mentioned that on a recent visit up Camp Creek, which was in the neighborhood of the Howard ranch, that he had seen some young critters, and he would take two of them if they were not too large. Stone testified that there was no agreement as to how he was to get the calves but it was obvious that defendant knew that Stone had no money with which to buy them.
Following this conversation, Stone testified that he went up Camp Creek, saw the two calves that he afterwards killed, shot one and started to skin it and then the other one came along and he shot that one. He dragged one of them two or...
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