56 P. 971 | Ariz. | 1899
The defendant, Joseph Dickson, was tried at the June term, 1898, of the district court of Yavapai County, upon an indictment charging him with the crime of grand
The subject of the alleged larceny was a certain calf, the property of one Bobert Blair. The assignments of error made by counsel for appellant are classed in his brief under thr'ee heads: 1. The admission of incompetent evidence; 2. Prejudicial remarks of the district attorney in his closing argument to the jury; and 3. That the verdict and judgment are not supported by the evidence. The first error assigned by the appellant is, that for the purpose of proving the ownership of the animal alleged to have been stolen, the territory was permitted to introduce in evidence, over objection, what purported to be a certificate from the secretary of the live-stock sanitary board of Arizona Territory of the registration of the brand of Bobert Blair in the territorial brand-book, but which certificate, it is claimed, was lacking in a material particular,—namely, the date at which said brand was recorded with the sanitary board. Act No. 6 of the Session Laws of 1897, being an act “to codify and revise the laws with reference to live-stock,” contains the following provisions relating to the recording of brands, and the effect thereof as evidence of ownership:
“Sec. 49. For the purposes of this act and in all the prosecutions arising under the same, or in the prosecution of any offense arising under the laws of this territory in regard to the unlawful taking, handling, killing, driving, or other unlawful disposition of animals of the bovine kind, . . . the proof of the brand by a certified copy of the registration thereof in the territorial brand-book, under the seal of the said board [live-stock sanitary board], certified to by its secretary, shall be sufficient to identify all . . . neat cattle, and shall be prima facie proof that the person owning the recorded brand is the owner of the animal branded with such brand.
‘ ‘ Sec. 50. At any time before the first day of July, after the passage of this act, it shall be the duty of persons, firms, companies, or corporations owning brands and marks, to file the same with the said board, and the said board shall record the same in a book of brands and marks, and shall furnish to the owners certificates thereof under the seal of the board, free
The certificate introduced in evidence, the admissibility of which was questioned, is in the following form: “No. 72. Territory of Arizona. Office of the Live-Stock Sanitary Board, Phoenix, Arizona. This is to certify that Robert Blair, of Prescott, county of Yavapai, Arizona, has filed in the office of the live-stock sanitary board a certificate, issued by the county recorder of Yavapai County, showing him to be entitled to the use of brands and marks below given, by virtue of a former statute, and that the same have been recorded at 4:30 p. m. o’clock on the day, month, and year below written, to wit: [Designated brand for cattle.] Given under my hand and seal, this 29th day of April, 1897. [Signed] Chas. W. Pugh, Secretary Live-Stock Sanitary Board. [Seal.]” The point is urged by the appellant that, inasmuch as the method of procedure prescribed for obtaining a certificate of brand prior to July 1, 1897, is different from that which was to be operative thereafter, the time of the actual recording of the brand is an essential element in the certificate; particularly in view of the dignity which the statute accords to a proper certificate, and the fact that this is a criminal prosecution. A determination as to the correctness of this position is unnecessary, in view of the interpretation which we give to the certificate in question. It is our opinion that the latter substantially complies with the requirements of the statute, and does, in fact, authenticate the date of the recording of the brand. Despite the somewhat faulty construction, we think the document, fairly and reasonably interpreted, declares the brand to have been recorded at 4:30 o’clock p. m., on the twenty-ninth day of April, 1897.
The second error assigned, predicated upon alleged ■ remarks of the district attorney in his closing argument to the jury, relates to a question which is not properly before us for review. The appellant has failed to preserve in the record the remarks of which he complains, and we are thereby precluded from any consideration of their effect upon the jury.
It is urged finally, for reversal, that the verdict and judgment are not supported by the evidence. On the trial there seemed to be but little controversy over the main facts, the case hinging principally upon the question as to whether or not there was felonious intent. The evidence showed that the defendant lived at Skull Valley, which was a railroad station and post-office, and controlled a pasture inclcsure within five hundred yards of the station, in which were confined cattle bearing his own brand of “J S”; that for some time prior to the twenty-seventh day of April, 1898, there had been ranging in the vicinity of the station a stray cow and calf, both being of a pale red, or buckskin, color, the calf unmarked, the cow branded “B,” which was known to the defendant as the brand of Robert Blair, a stockman whose ranch was sixteen miles off; that in the afternoon of the above-mentioned day, the defendant assisted his employee, one Dick Hall, to rope and catch the calf referred to, and to lead it from a point near the station to defendant’s pasture, into which they placed it, without branding, among other cows, steers, yearlings, and calves; that the Blair cow had followed at some uncertain interval, and appeared early the next morning at the outside of the inelosure, bellowing to the calf in a manner significant of the relationship, the calf being not more than six or seven months old; that soon thereafter the calf was turned out of the pasture by Hall and defendant’s brother and went off with its mother; that, on the same day, both animals went into a round-up of cattle in that section, through the means of which they were returned to their owner. The law defines larceny as the felonious stealing, taking, carrying, leading, or driving away the personal property of another. Pen. Code, par. 762. The defendant, testifying in his own behalf, in his direct examination, explained that he put the Blair calf in his inclosure because
Street, C. J., and Doan, J., concur.