Thomson v. State

• Decision Date: 24 March 1913
• Docket Number: 712
• Citation: 21 Wyo. 196,130 P. 850
• Parties: THOMSON v. STATE
• Court: Wyoming Supreme Court

130 P. 850

21 Wyo. 196

THOMSON v. STATE

No. 712

Supreme Court of Wyoming

March 24, 1913

ERROR to the District Court, Weston County; HON CARROLL H PARMELEE, Judge.

Daniel Thomson was charged by information in the District Court with stealing one horse alleged to be "of value" and "the property of James Ryan." The trial resulted in a verdict finding him guilty "as charged in the information," and the defendant was sentenced to a term in the penitentiary. The other material facts are stated in the opinion.

Reversed.

A. H Beach and Camplin & O'Marr, for plaintiff in error.

The motion of the defendant below for a postponement of the trial on account of the absence of a witness for whom a subpoena had been duly issued, but who could not be found in the county by the sheriff, as shown by his return on the subpoena, should have been sustained under the provisions of Section 5139, Compiled Statutes, 1910, since the state did not agree that such absent witness would, if present, testify to the facts stated in the affidavit in support of said motion. The court also erred in permitting the filing by the prosecution of counter-affidavits opposing the motion and affidavit for continuance. (Comp. Stat. 1910, Secs 5139-5141; Hair v. State, 14 Neb. 503; Newman v. State, 22 Neb. 355; Gandy v. State, 27 Neb. 707; State v. Abshire (La.), 17 So. 141; State v. Dakin, 52 Ia. 395; Terr v. Kinney, 9 P. 599.)

The court should have charged the jury to declare in their verdict the value of the property taken. (Comp. Stat. 1910, Sec. 6252.) And the jury having failed by their verdict to ascertain and declare such value, the verdict is insufficient. (Armstrong v. State, 21 O. St. 357; Holmes v. State, 58 Neb. 297, 78 N.W. 641; McCoy v. State, 22 Neb. 418, 35 N.W. 202; Fisher v. State, 52 Neb. 531, 72 N.W. 954; Bartley v. State, 53 Neb. 310.) Horse stealing is larceny, and the language of Section 6252 is clearly broad enough to embrace that offense. Defendant's motion for a directed verdict in his favor should have been sustained. A criminal charge must be proved as laid, and all essential elements of the charge must be established beyond a reasonable doubt. Where the accused is charged with larceny, if it appears that he came into possession of the property honestly, he is entitled to the benefit of such proof. (Conkwright v. People, 35 Ill. 204; People v. Miller, 11 P. 514.) Where the defendant has given a reasonable explanation of his possession, showing that he came by the property honestly, the burden is on the prosecution to prove the falsity thereof. (Powell v. State, 22 Tex.App. 447, 35 S.W. 737; Jones v. State, 30 Miss. 653; Johnson v. State, 12 Tex.App. 385.) There was no proof of asportation nor of any felonious taking. Nor was there any proof of criminal intent, or of venue. The verdict is not sustained by sufficient evidence. (Dean v. State, 41 Fla. 291, 26 So. 638; Long v. State, 44 Fla. 134, 32 So. 870.)

D. A. Preston, Attorney General, for the State.

There was no effort made to procure the presence of the defendant's alleged absent witness until some time after the convening of the term at which the case stood for trial and was tried. At the time the subpoena was issued the defendant knew that the witness was beyond the jurisdiction of the court, and the affidavit for continuance stated that he was a resident of North Dakota. The statute provides for taking the deposition of a non-resident witness by the defendant in a criminal case, but no effort was made by this defendant to procure the deposition of his said witness. The application for a continuance, therefore, did not show due diligence in procuring the presence or testimony of the witness. (Keffer v. State, 12 Wyo. 49; State v. Farrington, 90 Ia. 673; State v. Lewis, 56 Kan. 374; State v. McCoy, 11 Mo. 517; People v. Oh Lee Doom, 97 Cal. 171; Haile v. State, (Tex.) 43 S.W. 999.)

Section 6252, Comp. Stat. 1910, requiring the jury to ascertain and declare in their verdict the value of the property stolen, was enacted in 1869, when the penalty for larceny depended upon the value of the property stolen. But when the value of the property stolen does not affect the penalty the provision of said section does not apply. (Hoge v. State, 117 Ill. 35; Woodring v. State, 14 Okl. 250; Shepherd v. State, 42 Ala. 531.) Section 5832, a subsequent statute, makes the stealing of a horse a felony regardless of value. Therefore, it was not necessary to allege or prove the value of the horse described in the information as having been stolen. (Chestnut v. People, 21 Colo. 512; State v. Young, 13 Wash. 584; State v. Washing, 36 Wash. 485.) The defendant was found guilty as charged in the information. The offense charged was a felony, and no essential right of the defendant was affected by the omission of the jury to find by their verdict the value of the stolen property. (Cook v. State, 49 Miss. 8; Bryant v. State, 5 Wyo. 377; Mason v. People, 2 Colo. 373; Schoonover v. State, 17 O. St. 294; State v. White, 25 Wis. 359; U. S. v. Tyler, 7 Cranch, 285.) A general verdict of guilty is a finding upon all material averments of the indictment, including the value of the property charged to be stolen. (Chitwood v. State, 44 Tex. Cr. 439; Woodring v. Terr. supra.; Hoge v. People, supra; Wolverton v. Comm. 75 Va. 909; Koolenberger v. People, 9 Colo. 233; Elphege v. State, 31 La. Ann. 717; Burgess v. State, 33 Tex. Cr. 9.)

An examination of the evidence will fully disclose it to be sufficient and the justness of the verdict. The court will not substitute its judgment for that of the jury upon the facts. (Horn v. State, 12 Wyo. 120.) Upon conflicting evidence the verdict will not be disturbed. (Joseph v. State, 47 Ind. 255; Turner v. State, 36 S.W. 87; Wright v. State, 144 Ind. 210.) The assignment of error that the verdict is contrary to law, without stating any reason therefor, presents no question for consideration. (Dickerson v. State, 18 Wyo. 440; Miller v. State, 3 Wyo. 657.) Where no objection was made to the giving of an instruction it cannot be considered on error. (2 Sackett on Inst. 2059; Meerschat v. State, (Tex.) 57 S.W. 955.)

Admitting that it is within the discretion of the trial court to direct a verdict of acquittal, yet it is an established rule that a motion to direct such a verdict will be entertained only where the trial judge can clearly see from the evidence that it would be his duty to set aside a conviction. (Clark's Cr. Proc. 469; State v. Cady, 82 Me. 426; State v. Jones, 18 Ore. 256; State v. Collins, 24 R. I. 242; Breese v. U.S. 106 F. 680.) The assignments of error with reference to the admission and exclusion of evidence do not point out the evidence admitted or excluded, and hence present no question for consideration here. (Foster v. State, 59 Ind. 481; Walrath v. State, 8 Neb. 80; Edmonds v. State, 34 Ark. 724; Anderson v. Terr, (N. M.) 13 P. 21; Sweat v. State, 90 Ga. 315; Grant v. Westfall, 57 Ind. 121; Benson v. State, 119 Ind. 488.) A party cannot complain on error of the giving of a single instruction, where the only reference thereto in the motion for new trial was as one of a group, and one or more of such instructions appear to be correct. (Dickerson v. State, 18 Wyo. 444.)

BEARD, JUSTICE. SCOTT, C. J., and POTTER, J., concur.

OPINION

BEARD, JUSTICE.

The plaintiff in error, Daniel Thomson, was informed against, tried and convicted in the District Court of Weston County, of the crime of stealing a horse, and was sentenced to a term in the penitentiary. He brings the case here on error, seeking a reversal of that judgment.

The information was filed under the provisions of Section 5832, Comp. Stat. 1910, which provides, "Whoever steals any horse, mule, sheep or neat cattle, of value, * * * shall be deemed guilty of a felony, and upon conviction thereof shall be imprisoned in the penitentiary not less than one year nor more than ten years." The information charged the defendant below, Thomson, with stealing one horse (describing it) of value the property of James Ryan. On the trial the jury returned the following verdict: "We, the jury being lawfully impaneled and duly sworn in the above entitled cause, do find the defendant guilty as charged in the information." The sufficiency of the verdict to support the judgment is the important question in the case. The statute provides, "When the indictment charges an offense against the property of another by larceny embezzlement, or obtaining under false pretenses, the jury, on conviction, shall ascertain and declare in their verdict the value of the property stolen, embezzled or falsely obtained." (Sec. 6252, Comp. Stat. 1910.) The Attorney General argues that this section of the statute does not apply to the case at bar, for the reason that horse stealing is declared to be a felony, regardless of the value of the animal stolen, and for the further reason that at the time Section 6252, supra, was adopted horse stealing was included in the statute defining larceny generally, and to be a felony the value must be twenty-five dollars or more, and if below that amount it would be a misdemeanor only; and that in that state of the law it was necessary for the jury to ascertain and return in their verdict the value of the property stolen in order to determine the grade or degree of the crime, and that it is necessary for the jury to do so only in those cases in which the value determines the degree of crime. He has cited a number of authorities to the effect that where the statute makes the stealing of a particular article or kind of property a felony without regard to its value, it is not necessary, in the absence of a statute requiring it, to allege or prove any particular value or for the jury to find and...