Younger v. State

• Decision Date: 20 August 1903
• Citation: 73 P. 551,12 Wyo. 24
• Parties: YOUNGER v. STATE
• Court: Wyoming Supreme Court

73 P. 551

12 Wyo. 24

YOUNGER v. STATE

Supreme Court of Wyoming

August 20, 1903

ERROR to the District Court, Big Horn County, HON. JOSEPH L STOTTS, Judge.

The plaintiff in error was convicted of the crime of grand larceny and prosecuted proceedings in error. The facts are stated in the opinion.

Affirmed.

E. E Enterline, for plaintiff in error.

The evidence in rebuttal by the prosecution to impeach the testimony of a witness who had testified to having met defendant on the day of the alleged larceny at a place distant from the place where the larceny was committed was incompetent and immaterial unless it tended to establish that the witness could not have been at the place where he stated the meeting had occurred. It did not have such effect, for it did not appear that he could not have driven to the place of the alleged meeting after being seen by the witnesses for the prosecution.

The weight of authority is opposed to the instruction given as to the right of the jury to consider the interest of the defendant in determining the weight and credibility of his testimony. (State v. Webb (Ida.), 55 P. 892; Buckley v. State, 62 Miss. 705; 2 Thomp. Tr., Sec 2421; State v. Miller, 162 Mo. 253; State v. Austin, 113 Mo. 538; People v. Van Eman, 111 Cal. 144; People v. Hertz, 105 Cal. 663; People v. Winters, 125 Cal. 325; State v. White, 10 Wash. 611; Housh v. State, 43 Neb. 163; Argabright v. State, 49 Neb. 760.) It was error to instruct that the jury could reject the testimony of defendant where it is not contradicted or impeached. (Clark v. State, 32 Neb. 246; State v. Seymour (Ida.), 61 P. 1033; State v. Chingren, 105 Ia. 169; Barnett v. Com., 84 Ky. 449; State v. Patterson, 98 Mo. 283; Lowe v. State, 88 Ala. 8; State v. Musgrave (W. Va.), 28 S. E., 813; Ryler v. State (Miss.), 22 So. 890.)

The fact of possession is only to be considered in connection with other facts and circumstances proven in the case. (Gillespie v. State (Kan.), 63 P. 742; Cooper v. State, 29 Tex. App., 8; Ingalls v. State, 48 Wis. 647.)

The proof as to value was insufficient, because the witness did not show his knowledge of values. (Engster v. State, 11 Neb. 539; Brooks v. State, 28 Neb. 389; Edmonds v. State, 42 Neb. 684; Rooney v. State, 51 Neb. 596.) And it was incumbent on the State to prove the value at the time and place of the alleged larceny. There was no proof on this point. (1 McClain's Cr. Law, 585; 2 Bish. Cr. Proc. , Sec. 751 (5); Underhill's Cr. Ev., 358; 12 Ency. Law, 793; State v. Dorpke, 68 Mo. 208; Sanford v. Shepard, 14 Kan. 229; Kerr v. McGuire, 28 N.Y. 448; Harris v. R. R. Co., 56 N.Y. 660; May v. State, 111 Ga. 840; State v. Brown, 55 Kan. 611; People v. Cole, 54 Mich. 238; Burrows v. State, 137 Ind. 474; Smith v. State (Tex.), 44 S. W., 520; Rooney v. State, supra.) The conviction can be had only on competent evidence. (Dalzell v. State, 7 Wyo. 450.)

It was incumbent on the State to prove that the defendant asserted exclusive possession of the property. (People v. Warren, 130 Cal. 683; McNeally v. State, 5 Wyo., 59.) A jury has no right to arbitrarily reject the evidence of the defendant and his witnesses. (George v. State, 59 Neb. 163; Clarke v. State, 32 Neb. 246; State v. Seymour (Ida.), 61 P. 1033.) The evidence was entirely insufficient to support a conviction.

J. A. Van Orsdel, Attorney General, for the State.

When a witness places himself in a certain location or position, or traveling in a certain direction, it is competent for the opposition to show that the statements of the witness are not true. That is all that was attempted by the rebuttal as to the witness who testified to having met the defendant at a place distant from where the larceny was committed. The matter was before the jury to determine from all the evidence on the subject.

In all but a few jurisdictions it is held competent for the court to instruct the jury that they may consider the interest of the witness, whether as a party or otherwise, in determining his credibility. (Norris v. State, 87 Ala. 85; Hamilton v. State, 62 Ark. 543; Bressler v. People, 117 Ill. 439; Siebert v. People, 143 Ill. 571; State v. Metcalf, 17 Mont. 417; Faulkner v. Ter., 6 N. Mex., 464; State v. Bohan, 19 Kan. 35; Haines v. Ter., 3 Wyo., 167; Clark v. State, 32 Neb. 246; State v. Carey, 15 Wash. 549; State v. Welles, 111 Mo. 533; McDonald v. Rifle B. Co., 71 Mich. 61; Davis v. Railroad Co., 60 Ga. 329; Randall v. State, 132 Ind. 539.) Substantially the same instruction as that given in this case on the subject of defendant's interest as affecting his credibility has been approved in a number of well considered cases. (Norris v. State, 87 Ala. 85; Bressler v. People, 117 Ill. 439; Siebert v. People, 143 Ill. 571; State v. Metcalf, 17 Mont. 417; Halderman v. Territory, 60 P. 876 (Arz.); State v. Adair, 160 Mo. 391; State v. Miller, 159 Mo. 113; State v. Zorn, 71 Mo. 415; State v. McGuire, 69 Mo. 197; State v. Wisdom, 84 Mo. 190; State v. Bohan, 19 Kan. 28; State v. McGinnis, 76 Mo. 326; Faulkner v. Territory, 6 N. Mex., 464; Territory v. Romine, 2 N. Mex., 114.)

The instruction as to recent possession is a correct statement of the law. (Gillespie v. State, 63 P. 742.)

No objection was interposed at the trial as to the sufficiency of the proof of value. Any objection, therefore, such as now made, has been waived. There is nothing in the evidence to show that the value testified to was not the market value, nor that the witness was not thoroughly acquainted with the value. The evidence is amply sufficient to sustain the verdict.

POTTER, JUSTICE. CORN, C. J., and KNIGHT, J., concur.

OPINION

POTTER, JUSTICE.

The plaintiff in error, Ed Younger, was informed against in the District Court for the County of Big Horn for the crime of grand larceny; the information charging him with having stolen four horses of the value of $ 300, the property of one Emereth A. Boots. The crime is charged to have been committed July 29th, 1901. He was convicted and was sentenced to imprisonment in the penitentiary for the period of three years and six months, the jury having by their verdict found the value of the property stolen to be $ 200.

It appears from the evidence that the defendant was at the ranch of the owner of the property alleged to have been stolen on the 25th day of July; said ranch being located, as we understand, in the southern part of Big Horn County. Mr. Boots testified that on the evening of that day Younger rode up to his place and informed him that there was a horse collar down in the road and then asked him the way to some mining prospects in the mountains. He was directed to the road by Mr. Boots, who opened the gate and told him to go through the field, as it was nearer. Younger was accompanied by another man, both on horseback, and they rode away, leading three head of horses. That was the last that Mr. Boots saw of Younger until he met him in Red Lodge, Montana, where he had been arrested in possession of the horses claimed to have been stolen. The horses were work animals and had been turned out in the neighborhood of the ranch of the owner, who missed them on or about July 30th. The evidence for the prosecution showed that Younger and a companion were seen at different places within a few days following their appearance at the ranch of Mr. Boots traveling, as we understand it, in a northerly direction; and on the 31st day of August he was seen by one of the witnesses for the prosecution in possession of the horses in question. It was not denied by the defendant that he and his companion were in possession of the horses, but he testified that they were purchased by his companion a few days after they were at the ranch of Mr. Boots from another man by the name of Jones, and the defendant denied having any interest in the horses. It appears, however, that he exercised some control over them. On the 3d day of August he secured from a witness for the prosecution permission to put these horses in his pasture. The witness testified that the defendant came to his house just after breakfast, and said his partner was sick and they would have to lay over for a day, and they wanted to put some horses in a pasture, as they would not stay together and wanted to go back. The witness stated that defendant and companion had come from the south, which would be from the direction of the Boots place. He further testified that he discovered afterward that instead of putting the horses in the pasture designated by him, which was without trees or shrubbery of any sort, they had been placed in a different pasture that contained brush and trees. The other horses that defendant and his companion had with them were not put in a pasture, but were allowed to graze along the side of the road. The defendant and companion either shortly before or after this were seen by another witness in whose pasture four of the eight or nine horses they had with them were placed.

There was some evidence tending in a measure to corroborate the testimony of defendant that his companion had bought the stolen horses from a man named Jones. A witness introduced by defendant testified that just before sundown on a day in the latter part of July the defendant and another man were at his place, and they had five head of horses with them, none of them being the horses belonging to Boots; that his place was about seventeen miles from the Boots ranch that during the same evening he saw what he supposed was a man named Brown driving four saddle horses about a mile away from his place, and that he saw the man Jones coming from the same direction on horseback; and while his testimony is not clear on the subject, we understand it to indicate that he saw defendant's companion and Jones go back on horseback...