Starke v. State

96 P. 148 | Wyo. | 1908

Buard, Justicu.

The plaintiff in error was tried in the district court of Converse County upon an information containing two counts, the first count charging grand larceny, and the second count charging the receiving of stolen property, knowing the same to have been stolen. He was convicted on the first count of the information and sentenced to imprisonment in the penitentiary, and he brings error.

The grounds upon which he relies for a reversal of the judgment, as stated in the brief of his counsel, are:

1. “Error on the part of the trial judge in overruling challenges for cause to certain jurors.”

2. “Failure of the court to properly instruct on the crime of larceny and receiving- stolen property and the essential elements thereof.”

3.' “Insufficient evidence on behalf of the state.”

The property alleged to have been stolen was four hundred head of sheep. Three of the veniremen called and examined as to their quaiificat'ions to serve as jurors in the .case were challenged by the plaintiff in error for cause on the ground that they were each members of certain associations, one of the purposes of which associations was the detection and prosecution of parties for the larceny of live stock; and it is claimed that for that reason they were not impartial and were disqualified to act as jurors in the case. Upon being examined as to their qualifications, one of them (Mr. Shaw) stated that he was a member and director of the Converse County Cattle Growers’ Association ; that the association employed stock detectives to look after horses and cattle, but not sheep; that the detectives were paid out of the general dues as long as they were sufficient; that he did not belong to the sheep growers’ association. Another of the jurors (Mr. Jenne) stated that he was a member of the Wyoming Wool Growers’ Association; that he did not know whether or not the association expended money for the collection of evidence, or the employment of detectives or attorneys for the purpose of convicting persons charged with the larceny of sheep or other live stock; that he paid dues to the association, and had some time before paid two assessments, but did not know for what purpose the money was used. The other juror (Mr. Williams) stated that he was a member of the Wyoming Stock Growers’ Association, the Eastern Wyoming Wool Growers’ Association, and the Wyoming Wool Growers’ Association. He was then asked and answered as follows: Q. “Do those associations or bodies, as one of the matters for the protection of the sheep growers of Wyoming expend money for the collection of evidence, employment of detectives or attorneys for the purpose of convicting persons charged with the larceny of sheep or other live stock?” A. “I presume they do, yes.” Q. “That is one of the purposes of their organization in a way, for the protection of live stock interests is to punish crime in connection with the live stock business?” A. “I think so.” He also stated that he paid dues to, and was in good standing in those associations. It is not claimed that these jurors were otherwise disqualified. The mere fact that they were members of such associations, paid dues thereto and were liable to assessments by the associations did not necessarily disqualify them as jurors, in the absence of a showing that the association to which they belonged was in some manner connected with or'interested in the prosecution of this case. (Abbotts Trial Brief (Crim. Causes) 238; Guy v. State, 96 Md. 692; Musick v. People, 40 Ill. 268; State v. Flack, 48 Kan. 146; Boyle et al. v. People, 4 Colo. 176.)

The cases cited by counsel for plaintiff in error are not applicable to the facts as disclosed by the record in this case. We will notice a few of them. In Commonwealth v. Moore, 143 Mass., 136, the juror was a member of the Law and Order League which had employed the complainant and another, who were witnesses on the trial, to induce the defendant and others to sell liquor, for the purpose of prosecuting them for a violation of the law. In State v. Moore, 48 La. Ann., 380, the juror stated that he had contributed money for the prosecution of the whiskey cases, including that of the defendant. And in State v. Fullerton, 90 Mo. App., 411, the association to which the juror belonged had employed the witnesses to go from St. Louis to Princeton and make the purchase of the liquor charged in the information. In each of those cases the association of which the juror was a member, or the individual juror, was directly interested in the prosecution of the particular case. In the case before us neither of the persons challenged served upon the jury, but by whom they were excused does not appear in the record. Counsel for plaintiff in error state in their brief- — and we have no doubt truly — that they were compelled to exercise peremptory challenges as to these jurors; but however that may be, there is no just cause for complaint as the jurors were not shown to be disqualified.

It is next contended that the court erred in failing to properly instruct the jury, in that it failed to define the crime of larceny. The court did not quote the statute or otherwise define the word “larceny”; but in the second instruction told the jury, in substance, that it was incumbent upon the prosecution to establish to their minds beyond a reasonable doubt, the material allegations of the information and that such material allegations were, 1, that the property alleged to have been stolen by the defendant was the property of the Mountain Home Company, a corporation, as charged in the information, and that the property was of some value; 2, that the property was taken by the defendant, or that the defendant had a criminal agency in the taking, with the intention of depriving the Mountain Home Company of the same, and of appropriating the same to his own use, and without the consent of the owner; 3, that it was so taken in the County of Converse and State of Wyoming, and, 4, that it was so taken at some time previous to the filing of the information. By the twelfth and thirteenth instructions the jury was fully informed as to what would constitute consent by the owner to the taking of the sheep by the defendant. Counsel have not pointed out wherein an)' essential element necessary to constitute the crime of larceny is omitted from these instructions, and we discover none. By the instructions as given, the jury was as fully advised as to what facts it was necessary for the prosecution to establish in order to convict the defendant, as it would have been had the court specifically defined the crime of larceny.

The remaining question, and the one most earnestly urged by counsel, is, whether there is sufficient evidence to sustain the verdict and judgment. It is argued on the part of plaintiff in error that the case is what is known as an entrapment case, and that the weight of the evidence shows that the sheep were taken with the consent of the owner. This seems to have been the main contention in the case, and its determination depended largely upon the. testimony of Hartman, the range foreman of the Mountain Home Coin-pany, and the defendant Starke. There is a direct conflict In their testimon)' and each of them is more or less corroborated by the other evidence. The credibility of the witnesses and the weight to be given to the testimony were questions for the jury; and it is not claimed that the jury was not fully and fairly instructed as to what would con-stitúte consent by the owner to the taking of the sheep, and that the defendant could not be rightfully convicted unless the jury found 'from the evidence that the taking was without the consent of the owner. The jury evidently believed Hartman and disbelieved the defendant, and there is nothing in the record to indicate that the verdict was the result of passion or prejudice. The question was mainly one of veracity between the witnesses, the determination of which was the peculiar province of the jury, and its determination is more likely" to be right in that respect than our judgment can be from reading the evidence in the record. The trial judge who saw the witnesses and heard the testimony had also passed his judgment upon the sufficiency of the evidence in overruling the motion for a new trial. Under the well settled rule that where there is a substantial conflict in the evidence and where there is evidence in the record upon which the verdict may be fairly based, as in this case, this court will not reverse the judgment on the ground of the insufficiency of evidence. We find no prejudicial error in the record, and the judgment of the district court will be affirmed. Affirmed.

Potter, C. J., and ScoTT, J., concur.