28 P.2d 782 | Wyo. | 1934
The defendant James Costin and one Sam McCourt were jointly indicted in Sweetwater County, Wyoming, for larceny on November 6, 1930, of 32 coyote hides belonging to the State of Wyoming, of the value of $145.00. It appears that Sam McCourt was tried separately a number of months prior to the time of the trial of the defendant Costin, the latter being detained in the Federal penitentiary during McCourt's trial. McCourt was acquitted. What the evidence was in his case we do not know, nor is it material here. The defendant Costin was tried in March, 1932, and was convicted of grand larceny, and he has appealed from the judgment rendered pursuant to such conviction.
1. It is assigned as error that the evidence is not sufficient to sustain the verdict, no question, however, being raised as to the ownership of the property or the value thereof. Nor is it argued that the property was not in fact stolen, and the chief argument seems to be directed to the point whether the defendant Costin or Sam McCourt committed the larceny. The main points relied on by the state to sustain the verdict is the opportunity which Costin, the defendant, had in stealing the property and his recent possession thereof thereafter, together with the circumstances connected therewith. The coyote hides were kept in a granary on the Rasmussen ranch, some 45 miles south of Rock Springs in this state, placed there by one Leonard Holst, who worked for the state of Wyoming, under the direction of the Biological Survey, trapping coyotes. On the date of the larceny he had in the granary 32 *467
hides, some cured, and some uncured, the latter being still on stretchers. In addition to these hides there were three which belonged to one Nelson Rigley, making 35 in all. The larceny is claimed to have been committed on the night of November 6th, 1930. The defendant Costin was on the Rasmussen ranch on November 5th, 1930, having been called there for the purpose of taking one Frank Mokler, who was working on the ranch, to town. While there, and in the evening of November 5th, 1930, the defendant was in the granary above mentioned, where the hides were kept. The occasion for going there was the fact that Mokler kept a can (said by counsel for appellant to have been a still), which he wanted to take along as he went to town. At that time there were also on the ranch one Lem H. Cooley, who managed the Rasmussen ranch, and two strangers, who came on horseback, ate supper at the ranch, and left next morning. Much was made in the oral argument of counsel for appellant of the presence of these two strangers on the ranch. But as far as we can see, the point is without significance. Cooley testified that they were men rounding up cattle; that they left on the morning of November 6th, 1930, and that he saw the hides in the granary after they had left. Furthermore, there was testimony indicating that the tracks of their horses were followed two days thereafter, and it was found that these tracks did not turn back to the ranch after the men had left. Nor does it appear that Sam McCourt, who also lived in town, had ever been on the ranch, or that Frank Mokler or Cooley were in any way connected with the larceny in question. Hence there is no doubt that these facts might be grounds for suspicion for those subsequently investigating the crime that the defendant Costin might have had something to do with *468
it, although we are in perfect accord with what was said in State v. Morris,
These are the main facts relied on by the State to sustain the conviction. That recent possession of stolen property is a material factor in determining the guilt or innocence of the defendant in a larceny case is agreed on by all the courts. 36 C.J. 867; Richey v. State,
The defendant, as stated, made the trip to Salt Lake City at night, although, as the evidence indicates, neither he nor Sam McCourt had any occupation. He attempted to explain that by testifying that his wife was very sick that day. But it is clear, if that was true, that she was still seriously sick at the time that he left. It is apparent from the record that he and McCourt probably left Green River late on the night of the 6th, and yet, defendant left his wife, seriously sick as is claimed, in bed almost immedately after supper around six or seven o'clock, to play cards. His driving at night was further attempted to be explained by claiming that he had a letter and phone-call from his attorney at *471 Salt Lake City to be there for some financial matters not later than November 7th, 1930. He did not show that he transacted any business with his attorney on November 7. He did not have the letter calling him to Salt Lake City, nor did he produce the attorney as a witness to substantiate his claim. He testified that he was not in the store, where the hides were sold, had no communication with McCourt as to the price, and knew nothing whatever as to the fact that the check was to be made out to Sam Thompson. He was contradicted in almost every material point in this connection by the witness Christensen, and the jury doubtless credited the latter and found the defendant's testimony false. With these and other facts shown in the record it is clear that the jury were not bound to accept his explanation of his possession of the goods or give credence to his testimony in other respects. We need not mention the testimony of his wife or of one Harvey, by whom some of the defendant's claims were sought to be corroborated. Their credibility was for the jury. We feel satisfied, on the whole record, that the verdict of the jury is sustained by ample testimony.
2. It is assigned as error that the court permitted the 15 coyote hides to be introduced in evidence as Exhibit No. 1, without stating the basis of the error. The introduction thereof was objected to "for the reason that this defendant Costin has not been sufficiently connected with them; that there is no exclusive possession shown in him, or an insufficient joint possession shown with McCourt to entitle them to be admitted." The only argument in the brief of appellant on this point is that they were improperly admitted in evidence because they "were not properly and sufficiently identified to be received in evidence against the appellant." In the *472
light of the objection and assignment of errors above stated, it is somewhat difficult to tell just what counsel mean by their argument. The record shows that the coyote hides were in full view of the jury, when the various witnesses identified the pelts as part of the property stolen. And in view of that fact there is grave doubt that the mere formal introduction of them in evidence was in any way prejudicial to the defendant. In any event, the term "identification of property," when used in a larceny case, refers, when not otherwise qualified, to the identification of property as that which was stolen, and that point, as shown above, was never raised, either at the time of the trial, or in the assignment of errors. Exhibits of property may be made for various purposes, for instance, to show ownership, (People v. Wing,
Finding no prejudicial error, the judgment of the trial court must be affirmed, and it is so ordered.
Affirmed.
KIMBALL, Ch. J., and RINER, J., concur.