Webb v. State

• Decision Date: 01 May 1913
• Docket Number: Criminal 325
• Citation: 14 Ariz. 506,131 P. 970
• Parties: W. D. WEBB, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

131 P. 970

14 Ariz. 506

W. D. WEBB, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 325

Supreme Court of Arizona

May 1, 1913

APPEAL from a judgment of the Superior Court of the County of Yavapai. Frank O. Smith, Judge. Affirmed.

The facts are stated in the opinion.

Mr Reese M. Ling, for Appellant.

Mr. G P. Bullard, Attorney General, Mr. Leslie C. Hardy, Assistant to the Attorney General, Mr. P. W. O'Sullivan, County Attorney, Mr. Joseph H. Morgan, Assistant County Attorney Mr. J. Ralph Tascher and Mr. E. S. Clark, for Respondent.

OPINION

SHUTE, J.

The appellant, W. D. Webb, was indicted by the grand jury of Yavapai county on the third day of May, 1911, for the crime of grand larceny, committed on December 12, 1910, by stealing a neat animal, the property of the J. W. Sullivan Cattle Land and Water Company, a corporation. He was tried and found guilty. Defendant appeals from the judgment of conviction and the order overruling his motion for a new trial.

He assigns as error, first, the admission of the articles of incorporation of the J. W. Sullivan Cattle, Land and Water Company; second, the admission of a bill of sale from J. W. Sullivan to the J. W. Sullivan Cattle, Land and Water Company; fourth, the admission of a brand tax receipt for the year ending June 30, 1912, over the objection of the defendant; fifth, the ruling of the court in refusing to permit witnesses to testify for the purpose of contradicting and impeaching the deposition of one William Dougherty; and 3, 6, 7, 8, and 9 are assignments of error which appellant concedes are determined by the disposition of the other assignments, and are not argued in the brief and will not be considered. Bail v. Hartman, 9 Ariz. 321, 83 P. 358; Mayhew v. Brislin, 13 Ariz. 109, 108 P. 253; Southern Pac. Co. v. Richey, 13 Ariz. 67, 108 P. 225.

The first assignment of error is the admission of the articles of incorporation of the J. W. Sullivan Cattle, Land and Water Company, a corporation, over the objection of appellant; he claiming that, inasmuch as the articles of incorporation did not contain the names of the incorporators, and the record revealing that the articles of incorporation complained of were couched in the ordinary language, that "we, the undersigned," etc., at the bottom of which were signed the names of those purporting to be the incorporators of the company.

It was proved by the evidence that the company known by the name given in the indictment was a corporation de facto and doing business as such. It is now generally conceded by the great weight of authority that it is sufficient to establish that a corporation de facto exist to maintain an allegation of ownership in a corporation in larceny cases; and to establish that fact the introduction of its proposed articles of incorporation, whether in full compliance with the law of incorporation or not, would be a step in proving its de facto existence; hence the trial court did not err in admitting the articles complained of.People v. Hughes, 29 Cal. 258; Jones on Evidence, par. 55; People v. Frank, 28 Cal. 507; People v. Barric, 49 Cal. 344; Spring Valley W. W. v. San Francisco, 22 Cal. 441. And the general rule is very well expressed in 3 Encyclopedia of Evidence, page 594, as follows: "Should the prosecution for an offense committed on the property of corporations prove that the corporation was a de facto corporation, doing business as such under the corporate name set out in the indictment, it is sufficient; it is not necessary it should be proven to be a corporation de jure."

The second assignment of error is the admission of the bill of sale from J. W. Sullivan to the Sullivan Cattle, Land and Water Company, over the objection of appellant, when the J. W. Sullivan Cattle, Land and Water Company had not been shown to be a corporation under the laws of this state; secondly, for the reason that the purported bill of sale was undoubtedly filed, and was recorded, in the office of the livestock sanitary board of Arizona on the 5th day of May, 1911, which was after the date of the alleged commission of the offense, and could not be any evidence of the ownership prior to the date of its filing in the office of the livestock sanitary board.

The first objection is disposed of by the fact that a certain copy of the articles of incorporation of the J. W. Sullivan Cattle, Land and Water Company is in evidence; and the record further shows that J. W. Sullivan was president and secretary of the corporation. We think that is sufficient. People v. Hughes, 29 Cal. 258.

The second objection calls for a consideration of Act 51 of the Laws of Arizona 1905, section 63, which is as follows: "Every person, firm, association, or corporation owning range horses, mules, asses, or neat cattle, sheep or goats in this Territory, may design and adopt a brand and earmark with which to brand and mark their animals. No two or more brands of the same design or figure, and no two or more earmarks of the same kind, shall be adopted or recorded. The right to use for branding and marking range animals a brand or earmark designed and adopted as herein provided, and which shall have been recorded as hereinafter in this Act prescribed, shall be deemed to be the property of the person so designing and adopting and recording the same, and such right may be sold and transferred. No sale, transfer, or encumbrance of the right to use such brand or mark shall be valid, however, except it be evidenced by a written bill of sale, duly signed and acknowledged, as deeds for the conveyance or real estate are required to be acknowledged, and recorded in the office of the secretary of the livestock sanitary board."

This section is one adopted for the protection of those owners of range horses, mules, asses or neat cattle, sheep or goats who may design and adopt a brand or earmark with which to mark or brand their animals, and when adopted and recorded as provided by law shall be deemed the property of him who so designs and records such brand or mark, which right may be sold and transferred. The statute provides that no such sale, transfer, or encumbrance "of the right to use" such brand or mark shall be valid, unless it be evidenced by written bill of sale properly signed, acknowledged, and recorded in the office of the secretary of the livestock sanitary board. There is nothing in this section that by direct application would prevent one from selling animals which probably had upon them brands that were not recorded and could not have been recorded; for...