282 P. 105 | Or. | 1929
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *316 AFFIRMED. REHEARING DENIED. The defendant was indicted under § 1950, O.L., for the crime of larceny of livestock and upon the trial was found guilty; from the resulting judgment he appeals and assigns for our consideration fifteen alleged errors. Since many of these are predicated upon an alleged insufficiency of the indictment we quote its charging part as follows:
"The said Harold W. Christie did on the — day of June, A.D. 1928, in the said county of Josephine and state of Oregon, then and there being, did then and there unlawfully and feloniously take, steal and carry away the following described cattle, to-wit: One red cow, weight about 1,000 pounds, black nose, red Pole Stock, Natural Muley, crop off right ear, Branded "J.B." in right hip. One light Rhone Heifer, weight about 600 pounds, Rhone Durham and Jersey, branded "J.B." on right hip, and underslope on right ear and upper scallop on each ear. One spotted Steer with white face, weight about 700 pounds, two years old coming three branded "J.B." on left hip, underslope in each ear and upper scallop in each ear. One white faced steer, red, branded "J.B" on left hip, age coming three, underslope in each ear, and upper scallop in each ear. One Rhone Heifer calf, eight or nine months old, branded "J.B." on right hip, underslope on each ear, and upper scallop on each ear, the personal property of one, J.W. Baird." *317
Specifically the defendant contends that the indictment is insufficient for the following reasons: "1. * * * wholly indefinite and uncertain there being no date given as to the crime attempted to be charged. 2. That more than one crime was charged in the indictment. 3. That the facts stated did not constitute a crime." The third objection is so devoid of merit that it requires no comment. The disposition of the first will be facilitated by recalling to mind the provisions of the code which define what matter, descriptive of the crime, must be stated in the indictment: § 1448, O.L., provides "The indictment is sufficient, if it can be understood therefrom, — * * * 5. That the crime was committed at some time prior to the finding of the indictment, and within the time limited by law for the commencement of an action therefor." The pleading charges that the crime was committed in June of 1928, which was within the time limited by law for commencing this action. Hence, we conclude that the indictment is not subject to this objection:U.S. v. Conrad, 59 Fed. 458; State v. Barnett,
Several of the assignments of error arise out of the reception in evidence of a certified copy of the recorded brand of one, John W. Baird, and of testimony concerning the brand markings upon the two steers mentioned in the indictment. The copy of the brand received in evidence states that it was recorded in the office of the state veterinarian, February 2, 1928. The statutes in force at the times, with which we are concerned, made provision for the owner of a brand to record the same with the aforementioned official: 1927 Session Laws, ch. 150, p. 164. Another section of our laws makes provision that the brand of any animal should be prima facie evidence that the latter belongs to the owner of the recorded brand: § 9167, O.L. It is contended that the court erred because it did not require the state to precede proof of the recorded brand with evidence that the J.W. Baird, mentioned in the indictment, was the same individual *321 who recorded his brand with the state veterinarian. It is true that such preliminary proof was not required, but we believe that the objection made at that time was insufficient to call the state's and the court's attention to the fact that the defendant entertained any thought that possibly the recorder of the brand was not the same Baird as the one mentioned in the indictment. Before the trial John W. Baird died, and hence his testimony was unavailable to the state. We believe, however, that sufficient testimony was presented to prove that the Baird, whom the state contended owned these cattle, and the Baird, who filed the brand notice, was the same individual. For instance, the "J.B." brand, as described in the recorded instrument was upon the right hip of three of these animals; Mr. Baird's son testified that he and his father had thus branded at least two of these three, and that they had done so after his father had recorded the brand in February of 1928. The same witness identified the animals by reason of the brand upon them. Another witness, who testified that he was "very familiar" with the brand of J.W. Baird, the aforementioned deceased, constantly referred to three of these animals as bearing the latter's brand. The foregoing testimony and other occasional parts to like effect, together with the evidence that Baird, the deceased, was the owner of these five cattle, constituted sufficient evidence that the Baird mentioned in the indictment was the same individual who had recorded the brand filed in the state veterinarian's office.
It is next contended that the court ruled that the brand "J.B." upon the left hip of the two steers could be used for identification purposes, and that it erred in so holding. We fail to find in the record any *322
ruling which entirely supports the first portion of the above contention; but we are willing to assume that it is there. Apparently the district attorney was of the opinion that an unrecorded brand could not be used to establish either ownership or identity, and therefore offered no proof of the brand markings upon the two steers. Baird's recorded brand required its application upon the right hip; these two steers were branded upon the left hip. In support of the latter portion of the above contention advanced by defendant, he contends that an unrecorded brand found upon livestock cannot be employed even for identification purposes; the court so instructed the jury and so ruled in all instances except one. Session Laws, 1915, ch. 33, § 33, codified as § 9162, O.L., declared to the above effect. InState v. Randolph,
The state was apparently unable to prove how the defendant obtained possession of these five animals, but the record indicates that the latter gave conflicting accounts in explaining his possession of them. In its endeavor to establish that the defendant had not obtained possession rightfully the state was permitted to offer the testimony of Baird's widow that Baird had not sold any of these animals to the defendant. It is now contended that the reception of this testimony constituted error; the defendant argues that there was no proof that the witness had any knowledge upon the subject and that her testimony did not refer to the particular cattle described in the indictment. These objections are without merit for several reasons, three of which we shall briefly state. First, since the witness, like her son, testified that no sales were made to the defendant she necessarily included these animals. Second, the state preceded this testimony with other proof showing the witness's means of acquiring her knowledge and thus rendered this testimony admissible; its weight, however, like that of all other testimony, whose credence is dependent upon the witness's opportunity for acquiring information, was for the jury. Third, shortly after the defendant's arrest he was called upon by one Jones, to whom he had sold these five animals, and was taken to task for the sale knowing "they did not belong to you but belonged to Mr. Baird." In the face of this accusation the defendant first remained silent, but when again thus accused replied: "I had a deal on for them," and finally stated that he neither purchased them nor paid for *324 them, and didn't know why he had made the sale. Later, he made restitution to Jones by delivering to him some cows of the value of these five animals. The sheriff of Josephine county, who was present when this conversation was held, testified to like effect. The defendant, who did not testify, made no effort to contradict this testimony. No error is revealed by this assignment.
The defendant contends that a fatal variance exists between the description of the animals as established by the proof and their description in the indictment. This contention is largely based upon the fact that the earmarks, described by the witnesses, are somewhat different from those appearing upon a drawing, which constitutes a part of a certified copy of Baird's recorded brand notice, offered in evidence by the defendant; another copy offered by the state omits the drawings of the earmarks. Both copies contain the same typewritten description of the earmarks. The latter does not correspond entirely with the description given by the witnesses, nor with that contained in the indictment. We notice, however, that witnesses, who were practical livestock men, testified that it is very difficult, if not impossible, to produce the precise earmark that the brander intended. Session Laws, 1921, ch. 151, p. 263, § 3, provides: "Owners of animals * * * may use earmarks and the same shall be taken in evidence in connection with the owner's recorded brand * * * in any criminal proceedings, when the title to such property is involved, or proper to be proved; * * *." The descriptions of color, kind, weight, age and like characteristics, given by the witnesses, correspond with substantial accuracy to those stated in the indictment, and, as we *325 have already observed, the brand marks upon the hips, as described by the witnesses, were precisely the same as averred in the indictment. We do not believe that the variance, above appearing, between the proof and the charge was in a material matter; the record does not disclose that it misled the defendant in making his defense and we cannot conceive how it could expose him to the danger of being placed again in jeopardy for this offense. It has been held that where an indictment described a horse as a bay with two white hind feet and the proof showed that he was a brown with one hind foot white, the variance was not material: Goldberry v. State, 66 Nebr. 312 (92 N.W. 906). The court's instructions upon the requirement that the proof must correspond substantially to the description, when the pleader described the animals with particularity, was complete and was expressed in an understandable manner; it added that all of the jury must agree upon the same animal and that a verdict of guilty could not be rendered unless the jury was satisfied beyond a reasonable doubt that at least one of the animals described in the indictment was the property of J.W. Baird and had been stolen by the defendant. The assignment of error charging a variance, in our opinion, presents no error.
It is next contended that the court erred in failing to instruct the jury that "one taking up an estray and selling the same without complying with the requirements of the statute" would not be guilty of larceny. We have carefully read the transcript of testimony, especially the part the defendant relies upon, and find nothing which would have warranted the jury in concluding that these five animals were estrays. Upon the contrary, we have already mentioned *326 the account which the defendant gave immediately following his arrest as to the manner in which he had acquired possession of the animals. When the defendant was making his delivery of these animals to Jones he stated that he had obtained one of the steers from a Johnny Brazealle, and thus accounted for the brand "J.B." upon its left hip. Such being the situation there was no occasion for charging upon the subject of estrays.
The defendant also predicates error upon matters which are intrusted largely to the sound discretion of the trial judge. We have, however, carefully reviewed the record description of these instances, but find no occasion for concluding that the circuit judge disposed of these matters improperly.
The foregoing disposes of substantially all the assignments of error. The remainder, we feel, are not of sufficient consequence to warrant an expression of our views. The case was carefully tried by counsel and by the judge; the latter's instructions to the jury were both clear and comprehensive. The verdict of guilty is based upon a record free from error; it follows that the judgment below must be affirmed.
AFFIRMED. REHEARING DENIED.
COSHOW, C.J., McBRIDE and RAND, JJ., concur. *327