288 P. 551 | Kan. | 1930
The opinion of the court was delivered by
Emmitt Byrd was charged in Morton county with the larceny of a cow, the property of Wade Benton. He was tried and found guilty. He has appealed, and contends: (1) that the evidence is insufficient to sustain the verdict; (2) that the venue of the crime was not proved, as alleged; (3) that the court erred in refusing requested instructions, and in the instructions given.
The facts disclosed by the record may be stated as follows: Emmitt Byrd lived at Hugoton, in Stevens county. He did some farming, but his principal business was buying and selling cattle and other live stock. Perhaps half a mile from the railway stockyards at Hugoton he had his own private stockyards, consisting of several pens, a building for hay, grain, etc., where he received and fed live stock, purchased in the country about, until sold or shipped.
L. C. Rickert, with his team, had been working for the railroad company widening the grade near Hugoton and was camped in the stockyards at Hugoton. When he fed his team about five o’clock the evening of November 17 he noticed that there were no cattle in the stockyards. When he did his feeding the next morning about eight o’clock he saw a yellow Jersey cow with dark markings in the stockyards. The cow stayed there without anyone paying any attention to her, apparently, until the next afternoon, which was Saturday, the 19th, when Rickert met Byrd on the street at Hugoton and asked Byrd if that was his cow in the railway stockyards. Byrd said he didn’t know, that some one might have brought her in for him. Rickert told him the cow had been there since Friday morning without anything to eat or drink, and Byrd stated that he would look after her. About ten o’clock that evening, in company with Mack Greenwood, who was at Byrd’s yards dealing with him about some cattle, Byrd took some feed to the cow in the railway stockyards. On Sunday morning, November 20, Byrd and Nix shipped two carloads of cattle from the Hugoton yards. They were taken there about 9:30 in the morning to be loaded in time for the eleven o’clock train. There were eighty-one or eighty-two head of cattle in the shipment. This cow was in the stockyards at that time, but was not loaded or shipped. Nix accompanied this shipment to Kansas City and did not return to Hugoton until a week later. On the day the shipment was made Byrd took this cow which had been in the stockyards, also a calf which he or Nix did not want to ship, to his own private stockyards.
On Sunday, November 20, Benton went to Hugoton and drove by Byrd’s stockyards and saw a cow in the yards which he thought
On Tuesday, November 22, L. C. Rickert observed, at a place near the railway stockyards at Hugoton, the tracks of a trailer, and near that a place on the ground where a cow had been pushed out and slipped on the ground. The car and trailer tracks were clearly visible. He examined them; it was a four-wheeled trailer and appeared to have two new tires on the rear and two smooth-tread tires in front. He examined the treads of the new tires and compared them with the tires on Byrd’s trailer. That had two smooth tires in front and two new tires in the rear. The marks in the track compared with the tread on these new tires and were the same. Later, but before the trial, Byrd, in talking with Rickert, said he understood Rickert had seen the person bring the cow to the stockyards. Rickert told him, no, he didn’t see the cow brought there, but he did see the tracks of the trailer, and asked Byrd if some one had his trailer that night. Byrd said if anyone had it he didn’t know it.
The evidence disclosed that after Byrd left the stockyards at Rolla, about five o’clock Thursday evening, November 17, he ate supper at a restaurant at Hugoton and visited with two persons there about seven o’clock in the evening. About ten o’clock, or later, that evening Ralph Haight, a farmer who lived in the country, called Byrd by telephone at his residence in Hugoton and talked with him. On that day Nix had been threshing, and after supper he went to town to see Byrd about their shipping cattle: His son was with him. They drove directly to B3^rd’s residence, but did not find him, although a light in the house was burning. They went up town and looked for Byrd about the streets and in various places, but did not find him, and went back to his house, where they found the light still burning, but no one was there.- They then drove home, reaching home at ten o’clock in the evening.
In the above summary of the evidence it has not been possible, of course, to give all the details. While argued under the headings as stated early in this opinion, appellant’s real contention may be stated thus: There is no evidence in the record as to how this cow got out of the stockyards at Rolla and into the railway stockyards
The court gave a well-worded instruction on the inference of guilt of larceny which the jury might draw from the recent unexplained possession of stolen property. Appellant complains of this instruction and argues that it is only the recent unexplained posséssion of stolen property from which guilt of larceny.may be inferred, citing State v. McKinney, 76 Kan. 419, 91 Pac. 1068; and it is argued that while Byrd himself did not take the witness stand and give any explanation of his possession of the cow, the evidence as to how he got possession of the cow was produced by the state when it was shown by the testimony of Rickert that the cow was in the railway stockyards at Hugoton from Friday morning until Saturday evening, with no one, apparently, paying any attention to her, Rickert’s telling Byrd on Saturday afternoon of the cow’s being there. That testimony was, of course, a circumstance favorable to defendant, but it was competent to show defendant’s possession of the cow, the circumstances, so far as the state knew them, of how he obtained possession, and the evidence as to what Byrd did with the cow when she was in his possession, and all of the facts and circumstances disclosed by the evidence in connection therewith. In this connection appellant complains of the testimony of Rickert with respect to the tracks of the trailer near the stockyards, and points out that these were not observed by Rickert until the Tuesday after the disappearance of the cow Thursday night, and argues that, at most, a trailer similar to Byrd’s trailer had been there at the stockyards at some time recently before the Tuesday when the tracks were found, and that a cow brute of some kind had been unloaded from it. It is true the evidence is remote as to time, but it was competent, and its weight was for the jury. In view of the disposition made of the cow by defendant, and of all the other facts shown, we think it was proper for the court to give the instruction just referred to. (State v. Rice, 93 Kan. 589, 144 Pac. 1016; State v. Bell, 109 Kan. 767, 201 Pac. 1110; State v. Schaefer, 111 Kan.
In view of the defendant’s statements to the officers that Nix and he owned the cow together, that Nix had helped skin her, and had done something with the hide and with a quarter of the meat, and of the testimony tending to show that defendant’s trailer delivered the cow to the railway stockyards at Hugoton — without evidence as to who was in charge of the trailer at that time — and in view of the other facts and circumstances disclosed by the evidence, the court gave instructions embodying the law as to an accessory to a felony before the fact (R. S. 62-1016), which instructions followed quite closely and, so far as they are pertinent, those given in State v. Wolkow, 110 Kan. 722, 205 Pac. 639. Appellant complains of these instructions on the ground that there was no evidence in the case which would justify the submission of instructions of this character to the jury. This contention cannot be sustained. While the evidence on this branch of the case is not so voluminous as it is in some cases, from the statement of the evidence above made it is clear that there was evidence which authorized the giving of these instructions.
Finding no error in the record, the judgment of the- court below is affirmed.