141 P. 1123 | Or. | 1914
delivered the opinion of the court.
The charging part of the indictment is as follows:
“The said Dick Garrett, Ray Clark, and C. Wright, on the 1st day of December, A. D. 1911, in the said county of Crook and State of Oregon, then and there being, and then and there acting together, did then and there unlawfully and feloniously take, steal, drive, and carry away one steer, the personal property of H. L. Priday and Mary Priday, comprising a copartnership, consisting of the said H. L. Priday and Mary Priday contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Oregon.”
The defendant Clark was acquitted, and the defendant Wright has not been arrested. The defendant Garrett was convicted, and he appeals. There was no motion for a nonsuit, or for a directed verdict, and
“Brand of Leslie Priday.
“This is to certify that I, the undersigned, Leslie Priday, residing in Crook County, Oregon, desiring to adopt a brand and earmark for the purpose of marking and branding livestock in the county of Crook, State of Oregon, do hereby adopt and claim the sole and exclusive right to use in said county the brand and marks hereinafter described, for horses, cattle and other livestock, the following being a facsimile and description of said brand, to wit: Horses: on the left shoulder. Cattle: J_ on both hips, earmark square crop off both ears. Earmark corrected by Leslie Priday, April 9, 1902.
“And I hereby apply to have the same recorded under act of the legislative assembly of the State of Oregon, of Feb. 20, 1893, and deliver herewith my brand burned upon a piece of leather, to be retained in the office of the county clerk.
“Witness my hand this 27th day of Dec., 1897.
“[Signed] Leslie Priday.”
Indorsed on margin:
“I hereby assign all my right, title and interest to the wi thin brand, to H. L. and Mary Priday, this 9th day of May, 1912.
“[Signed] Leslie Priday.
“Attest: Warren Brown, County Clerk.
“By A. W. Battles, Deputy.”
The defendant objects to the admissibility of said certificate, and contends that it is fatally defective, in that it does not describe Priday’s brand. It gives
Eeferring to brands of animals, 2 Cyc., page 325, says:
“When the record shows the brand and mark claimed, and by whom they are claimed, it attains all the purposes of the law.”
In McClure v. Sheek’s Heirs, 68 Tex. 430, 431 (4 S. W. 554, 555), the court says:
“The bill of exceptions to the introduction of the record from Palo Pinto was based upon the grounds: First, that the record was a mere recital of the mark and brand ostensibly made by the clerk; and, second, that it appeared that G. W. Sheek had another brand in Parker County. It is sufficient to say in regard to the first objection that the entry upon the record book showed distinctly the brand and mark claimed by G. W. Sheek, and that this attained all the purposes of the law. Its form was a matter of no importance Otherwise.”
In Chestnut v. People, 21 Colo. 521 (42 Pac. 659), the court says:
“While it is true that the transcript of record * # does not show a formal certificate, signed by Eichard
In the case just cited the record stated that the brand “VI” was composed of the letters “V” and “I” a fact that was obvious without any such statement; but it did not show that the owner of the brand filed for record any certificate showing that he had adopted or claimed said brand. The Colorado statute required the filing of such a certificate, and the copy offered in evidence failed to show any such certificate, but the Supreme Court in that case held the copy admissible notwithstanding said defect. The brand in that ease had been filed and used for 10 years or longer. In this case Priday’s brand had been recorded and used longer than that. In this case Friday failed to say in his certificate that his brand was the capital letter “T” inverted; but that fact was obvious from an inspection of the certificate and record. If a facsimile of the letter “T” is given, it adds little to say that it is the letter “T.” In this case the copy admitted in evidence showed a proper certificate, and the only defect alleged against its sufficiency is its failure to state that the brand is an inverted letter T.
The syllabus of the court in Brown v. Moss, 53 Or. 519 (101 Pac. 207, 18 Ann. Cas. 541), is:
This does not mean that a strict compliance with the statute is necessary. A substantial compliance with the statute is all that is required. We hold that the certified copy of the record of the brand showed a substantial compliance with the statute, and that it was properly admitted in evidence.
The law as to the admission in evidence of the statements of one conspirator against another is stated thus in 2 Wharton, Criminal Evidence (10 ed.), Section 699:
“When the common enterprise is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted, by subsequent act or declaration of his own, to affect the others. His confession, therefore, subsequently made, even though by a plea of guilty, is not admissible in evidence, as such, against any but himself. * # But the mere flight of. a conspirator, after performance of an overt act, does not preclude the declarations of his co-conspirators, immediately after the act, from being put in evidence against him. Nor is a confederacy in larceny terminated by the mere taking. It continues until the articles are distributed. And in other offenses, acts and declarations after the commission of the crime and until the purpose of the conspiracy is complete are admissible. ’ ’
In Scott v. State, 30 Ala. 509, the court says:
“The strongest argument for the plaintiff in error against admitting as evidence against him the payment of the double toll by West is that the payment was made after the larceny of the watch was in legal contemplation complete as to West. But that argument, as well as every other urged by the plaintiff in error, can be satisfactorily answered. Conceding that the payment of the double toll was made after West-had done enough to authorize his conviction for the larceny of the watch, yet there is evidence which conduces strongly to show that it was made ‘while the conspiracy was pending, and in furtherance of the common design.’ The evidence justifies the conclusion
In O’Neal v. State, 14 Tex. App. 590, 591, the court in a larceny case says:
“Here, as in the Scott case, it is evident that the conspiracy extended beyond the mere taking of the cattle. It embraced the purpose and design of a sale of the cattle, and a division of the proceeds of that sale among the conspirators. It was while this conspiracy was yet unaccomplished entirely, but, in so far as a sale ahd division of the proceeds were contemplated by it, was still incomplete and pending, that the acts and declarations of defendant’s co-conspirators, which are objected to as inadmissible evidence against him, transpired, and were occasioned in furtherance of the common design. We are of the opinion that the court did not err in admitting the testimony objected to by the defendant.”
In Byrd v. State, 68 Ga. 661, the syllabus is in part:
“The acts and conduct of one accomplice during the pendency of the wrongful act, not only in its perpetration, but also in its subsequent concealment, are admissible against the other. So, also, his sayings pending the common criminal enterprise.”
See, also, on this point Carter v. State, 106 Ga. 376 (32 S. E. 345, 71 Am. St. Rep. 262); Baldwin v. State, 46 Fla. 115 (35 South. 220); State v. Stevenson, 26 Mont. 332 (67 Pac. 1001).
The evidence in this case tended to prove that the defendants Garrett and Wright conspired, not only to steal the steer, but to butcher him and sell the beef
There are 19 assignments of error in the appellant’s brief; hut only a few of them were referred to in the points and argument. We have examined them, and we find no reversible error. We believe that the defendant had a fair and impartial trial.
Section 1626, L. O. L., relating to appeals in criminal cases, is as follows:
“After hearing the appeal the court must give judgment, without regard to the decision of questions which were in the discretion of the court below, or to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.”
We have no right to reverse a case for errors that do not affect the substantial rights of the appellant.
The judgment of the court below is affirmed.
Affirmed. Rehearing Denied.