80 P. 321 | Ariz. | 1905
The defendant was charged by the indictment in this ease with “the crime of grand larceny, committed as follows: The said Frank Miller, on or about the 4th day of June, A. D. 1903, and before the finding of this indictment, at the county of Graham, territory of Arizona, did willfully,' unlawfully, and feloniously, take, steal, and drive away one certain animal of the horse species, to wit, a female colt about one year old, the said female colt then and there being the personal property of Mary Spofford; contrary to the statutes in such case made and provided, and against the peace and dignity of the territory of Arizona.” He was convicted of grand larceny, and sentenced to a term of seven years’ imprisonment in the territorial prison. The appeal is from the judgment of conviction and from an order denying the defendant’s. motion for a new trial.
It is urged upon us that the verdict and judgment are not sustained by the evidence, — first, because there was no proof on the trial of the value of the colt described in the indictment; and second, because there was no evidence of any felonious intent. Section 444 of the Penal Code of this territory, as amended March 12,1903, reads as follows: ‘ ‘ Grand larceny is larceny committed in either of the following cases: (1) "When the property taken is of the value exceeding fifty dollars. (2) When property is taken from the person of another. (3) When the property taken is a horse, mare, gelding, cow, steer, bull, calf, mule, jack, jenny, goat, sheep or hog, or any neat or horn cattle. ” It is contended by counsel for the appellant that a ‘ ‘ colt” is not included within the specification of the third subdivision of this section, and that it is therefore not such property the stealing of which would constitute grand larceny, without regard to its value. But we do not think that the Texas cases relied upon to support this view are in point. Under a statute of that state making it a felony to steal “any horse, gelding, mare, colt, ass, or mule,” it was held that an indictment for stealing a horse was not sustained by proof of the theft of a mare; for the statute having mentioned both “horse” and “mare” showed that the words were not intended by the
Upon the point relating to the felonious intent, the propositions of law which are stated by the appellant cannot be seriously challenged. Such intent is necessary to complete the offense, and if the defendant honestly believed that the animal which he was charged with stealing belonged to him he was not guilty of larceny. The rule which makes the taking under an honest, though erroneous, claim of right, a defense to an indictment for larceny, is one of the very few instances in which ignorance of the law affects the legal character of acts done under its influence. In the case before us the question of the good faith of the defendant’s claim of ownership was submitted to the jury under proper instructions, and was decided adversely to him. There was evidence on the trial from which the jury could reasonably have inferred that the taking of the colt was with felonious intent. They passed upon the sufficiency of this evidence after seeing the witnesses and their demeanor upon the stand. The trial judge reviewed its sufficiency upon the motion for a new trial. Under these conditions we are not now justified in disturbing the finding. Dickson v. Territory, 6 Ariz. 199, 56 Pac. 971.
It is claimed that the court erred in permitting two witnesses for the prosecution, over the defendant’s objection, to state their opinion that the colt in question belonged to a certain mare which it had been following. In each case the opinion of the witness was based upon his experience as a stockman and his personal observation of the conduct of the two particular animals toward each other. We think that a person long familiar with the conduct between mares and
The motion for a new trial was properly overruled, and the judgment of the district court will be affirmed.