Quinn v. People, 32 Colo. 135

32 Colo. 135 | Colo. | 1904

Mr. Justice Steele

delivered the opinion of the court.

Four informations were filed in the district court of Weld county at the November term, 1902, of said court, against these defendants separately. One information against Quinn, No. 1002, and one against Marooney, No. 1004, charged in different counts the larceny of a heifer belonging to Pobert A. Brown, the larceny as bailee of the same animal, the branding of it with a brand not the recorded brand of the owner, and the obliteration of a bránd upon it, on the 8th day of July, 1902. One information against Quinn, No. 1003, and one against Marooney, No. 1005, charged in a similar manner the larceny of a heifer belonging to Samuel K. Faris, the felonious branding of the animal, and the larceny as bailee of the same animal, on the 8th day of July, 1902. The causes were consolidated for trial, the defendants consenting thereto. The defendants were found guilty under the count charging larceny as bailee in each of the informations, and sentenced to imprisonment in the penitentiary.

The case is brought here on error to test the regularity and correctness of the conviction and sentence.

The counts upon which the defendants were convicted allege: ‘ ‘ That the said * * *, late of the county of Weld and state of Colorado, on the eighth day of July in the year of our Lord one thousand nine hundred and two, at and within the county aforesaid, then and there being the bailee of one head of neat cattle, to wit, one heifer, then and there being the personal goods and chattels of one * * *, • then and there being found, then and ther.e wilfully, knowingly, unlawfully and feloniously did convert the same to his own use with an intent to steal the same, contrary,” etc.

The facts proved upon the trial would have sustained a conviction under section 4270, Mills’ Annotated Statutes, providing that, “If any person who may receive from any owner or owners thereof any animals, sheep, cattle or horses for the purpose of herding or caring for the same, or any person who may he employed in any manner about the herding or caring for any animals, sheep, cattle or horses, shall sell, give away, kill, dispose of or convert the same or any one or more thereof in any manner to his own use, shall be .deemed guilty of the crime of embezzlement”; but the allegations of the information are clearly insufficient to ' charge an offense under that section. The count was evidently drawn under section 1256, Mills’ Annotated Statutes: “If any bailee, by finding or otherwise of any money, bank bill, or note, or goods or chattels, shall convert the same to his or her own use with an intent to steal the same, he shall be deemed guilty of larceny in the same-manner as if the original taking had been felonious, and on conviction thereof shall be punished accordingly.” It is not argued that this section is repealed, in whole or in part, by section 4270, but it is urged that in a prosecution under it for the conversion of live stock, there must be both allegation and proof ■of value. At the time of the enactment of this statute, and for some years thereafter, the punishment for larceny depended in all cases upon the value of the property stolen, but in 1877 a statute was enacted (section 4281 Mills’ Annotated Statutes) making the stealing of cattle, horses, etc., grand larceny, without regard to the value of the animal stolen. This statute was amended and re-enacted in 1891. Laws of 1891, 130. These statutes have been construed by this court in the cases of Kollenberger v. People, 9 Colo. 233, and in re Pratt, 19 Colo. 138; the court holding that the statutes defining larceny generally and the larceny of live stock were concurrent, and that the crime of larceny of live stock is indictable and punishable under either statute. We think the language of the statute: ££ He shall be deemed guilty of larceny in the same manner as if the original taking had been felonious, and on conviction shall be punished accordingly, ’ ’ makes the conversion by a bailee with intent to steal the exact equivalent of' a felonious stealing, taking and carrying away, and that any sentence that would be correct under an information charging simple larceny is equally correct under this statute concerning larceny by bailees. Counsel cite the case of State v. Hayes, 13 Mont. 116, as an authority to the contrary. We think it is not, for the reason that the Montana statute concerning larceny by .bailees says: “He shall be guilty of grand or petit larceny, according to the amount of the property or value of the goods, chattels, or property converted, in the same manner as if the original taking had been felonious.” Under this statute, the court held, in the case cited, that the conversion of a horse by a bailee would be grand, or petit larceny, depending on the value of the-horse, notwithstanding section 78 of the same chapter made the stealing of a horse grand larceny without regard to its value.

It is-urged that notwithstanding the defendants-consented to the consolidation of the cases for trial, it became the duty of the trial court, upon its appearing that two separate offenses were being proved, of his own motion to order that the trials be separate. We do not think, under the authority of Chesnut v. People, 21 Colo. 512, that the eases were improperly Consolidated, and we do net understand that after the jury was sworn for the trial of the two cases, the court could take one of the eases from the jury without the consent of the defendants. The court certainly did not err in not so interfering after the defendants had.consented to the consolidation.

It is nest contended that the evidence is not sufficient to warrant a conviction, particularly with reference to the Paris heifer. We shall not consider the objection concerning the sufficiency of the evidence in. the cases in which the defendants were charged with the conversion of the Paris heifer, because the record shows that the defendants were sentenced to a term in the penitentiary of not less than eighteen months nor more than two years for the larceny of the Brown heifer, and that the sentence for the larceny of the Paris heifer runs concurrently with it. The evidence upon the trial abundantly sustained the conviction of larceny of the Brown heifer. This evidence is summarized by counsel for defendants as follows: “In the spring of 1902, Robert A. Brown sent sis head of cattle to John Quinn, one of .the defendants, to be herded. All of these animals were branded the day before they were sent ‘B lazy S’ on the right side of the neck. This brand was not a recorded brand, but was borrowed from a neighbor, and the animals were branded for the purpose of identification by Quinn. The [understanding was, at the time the animals were sent to Quinn, that they were to be returned in the fall, and that the sum of 25 cents per head a month was to be paid for their pasturage. On the 8th day of July, 1902, Brown, the prosecuting witness, in company with several others, went to the ranch of Marooney (the other defendant) and found there the animal which the defendants were charged with having stolen. A piece of hide had been cut out or removed from the neck of this animal and it was branded ‘T lazy T’ on tbe hip. Tbe animal was then taken into Brown’s possession. A short time after this tbe prosecuting witness, with bis companions, met tbe two defendants south of tbe Marooney ranch, and Mr. Ireland asked tbe defendant Quinn if be knew who claimed tbe black heifer with'' tbe 4 T lazy T ’ brand on her left bip. Quinn replied that be did not, but that Marooney claimed tbe brand. Thereupon, Marooney being questioned, stated that be owned tbe black heifer; that be bad raised it and could prove it by Quinn. Quinn thereupon said, 4Yes, that’s so, I guess you did raise her.’ Afterwards Marooney stated to Mr. Ireland, in tbe presence of Sheriff Elliott, that be bad roped tbe heifer and that Quinn bad cut out tbe brand; that they intended to take this piece of skin, in tbe fall of tbe year, and show it to Brown and tell him tbe heifer was dead, and when tbe heifer got fat they were going to kill it and sell it and divide it.”

Tbe last sentence is italicized by counsel, and it is argued that it shows merely an intent to convert tbe animal at some time in the future; we think it shows a conversion at that time.

We find no error in tbe record, and tbe judgment is therefore affirmed.

Affirmed.