88 P. 617 | Wyo. | 1907
The plaintiff in error was tried, convicted and sentenced to a term in the penitentiary by the District Court of Converse County, and he brings the case here on error. The information upon'which the plaintiff in error was convicted was in two counts. The* first count charged the larceny of one head of neat cattle of the value of forty dollars of the property of Henry Trollope. The second count charged the felonious receiving of said property knowing the same to have been stolen. The verdict of the jury is in the following language, viz.:
“We, the jury in the above entitled case, do find the defendant guilty in the manner and form as charged in the information, and we find the value of the property stolen to have been $35.00.” It is contended that this verdict is ambiguous, uncertain and multifarious. It is insisted that the verdict does not find the value of the property at the time it is alleged to have been stolen. But we do not so construe the verdict. The jury found that the property had been stolen and its value to have been $35.00. This evidently refers to the time when it was stolen and is the only reasonable construction that can be put on the language of the verdict. It is also urged that the verdict is general and does not specify upon which count they found him guilty. The prosecution in this case was under the provisions of Sec. 4988, R. S. 1899, which is as follows: “Whoever steals any horse, mule or neat cattle, of the value of five dollars or upwards; or receives, buys or conceals any such horse, mule or neat cattle which shall have been stolen, knowing the same to have been stolen, shall be imprisoned in the penitentiary not more than ten years, or may be imprisoned in the county jail not more than six months.” The
Under these circumstances it is difficult to see how it can be said that it is uncertain as to the offense of which the jury found the defendant guilty. The verdict is in-.form a proper verdict on the charge of larceny and not in form on the other charge of receiving stolen property. (Bergdahl v. People, 61 Pac., 228 (Colo. 1900.) It responds to the issues submitted by the court in its instructions, and to the evidence introduced upon the trial; and the judgment as entered by the court is for the crime of larceny. The judgment contains the following: “It is therefore considered by the court that the defendant, J. W. Long, is guilty of the crime of stealing live stock of the value of $35.00.” While the decisions are not entirely uniform as to the sufficiency of a g-eneral verdict in a case where two or more offenses are charged in the indictment or information, yet
It is also assigned as error that the court refused to give instruction No. 1, requested by the defendant. No such instruction appears in the record. The only instructions given to the jury which are complained of in the motion for a new trial are the instructions numbered 1, 2 and 3, to the giving of which the record shows no exceptions were taken at the time they were given. It is too well settled to require the citation of authorities that instructions, to the giving of which no exceptions are taken at the time, cannot be considered by this court on error.
It is also urged that the court erred in admitting evidence in rebuttal as to the custom of the country in relation to the sale of cattle and brands. It appears that this evidence was admitted on the mistaken remembrance of the court that the defendant, who had testified in his own behalf, had testified in chief as to such custom; but upon discovering the error the court, on defendant’s motion, struck out the testimony in rebuttal on that subject and directed the jury to disregard it. We are unable, to see how the jury could have been misled by this circumstance to the prejudice-of the defendant, especially in view of all of the evidence in the case. If the defendant desired a more specific instruction to the jury to disregard the testimony stricken out, he should have requested it. It is further urged by counsel for defendant that the court erred in admitting testimony objected to by defendant, and in admitting immaterial evidence. But he has failed in his brief to point out where these matters can be found in the transcript. Rule 14 provides : “Each brief shall contain a statement of the points and authorities relied upon and shall refer specifically to the page and portion of the record where the question under discussion arises.” The brief for defendant in this case does not in a single instance refer to the page or pages of the record where the matters complained of can be found. We