123 P. 93 | Utah | 1912
The defendants were jointly informed against and jointly tried for the larceny of a. cow, the property of one Murdock. Both were convicted, and both appeal. The questions for re
Both defendants resided in Beaver County, where the alleged crime was committed. For some time prior to the alleged offense, Gillies was engaged in buying and shipping cattle from Milford and the ranges nearby. He also had a few head of cattle of his own on the range, fifteen or twenty. At the time of the alleged offense, Puffer was, and for about six months prior thereto had been, employed by Gillies to assist in gathering and caring for cattle, and to some extent in buying cattle. Gillies claimed that he had purchased, or had the right to purchase and take, cattle on the range belonging to his father and to a cattle company in which his father was interested. On the 21st of February, Gillies arranged for and ordered two cars for the shipment of cattle from Milford to Kansas City, Mo. On the 22d, he and Puffer went on the range nine or ten miles from Milford and gathered about seventy head of stock cattle, two carloads, having about a half dozen different brands, and belonging to that many different owners. None of the cattle belonged to Gillies or Puffer. About forty head belonged to Gillies’ father and the cattle company, and about twenty-nine head belonged to others, and bore their brands. The cattle were driven part of the way from the range to Milford by both defendants. When within four or five miles of Milford, Gillies rode ahead to procure feed. Puffer followed with the cattle, arriving at the stockyards at Milford after dark. He was unable to put them in the cattle yard or pen, and so drove and placed them in the sheep yard. The next day the cattle were placed in the cattle yard. There they were kept until the night of the 24th, when they were loaded on cars and billed to Kansas City. Puffer intended to accompany the shipment as caretaker, and Gillies to go on a passenger train. The cars were not picked up that night, and were still at Milford the next morning, the 25th. That morning, at about 1:30 o’clock Murdock, the complaining witness, inspected the cattle on the cars, and there found a cow belonging to him, the subject of the larceny, and three or four head of cattle belonging to his son. Shortly thereafter, he met Gillies at the station, and
Several hours thereafter, and after Murdock had filed a complaint in the justice court at Milford, charging both Gillies and Puffer with the larceny of the cow, and after the cattle had been -unloaded and placed in the cattle yard, Murdock had another convei'sation with Gillies in Puffer’s absence. The testimony of this conversation was also received over the special objection of Puffer. This conversation, as testified to by Murdock, was as follows:
“Gillies came to me in front of the Atkins’ Hotel (at Milford), and wanted to know if there could be something done. He said that he was willing to take the cattle and put them back on the range, or do anything to make things right; and I told him: ‘Dudley’ (Gillies), I says, ‘this thing is in the hands of the law now, and I don’t want to do anything but the right thing.’ I says: ‘I cannot consent to your taking the cattle back, or doing anything else.’ ‘Well,’ he says, ‘if that is the case, it will have to go at that.’ ”
Testimony of other conversations had with Gillies in Puffer’s absence, and after the complaint had been filed and the cattle had been unloaded, was also received over Puffer’s
The cattle, after they bad been unloaded and placed in the yard, were separated. Different owners then were present and identified cattle, about twenty-nine bead, taken by the defendants from the range which did not belong to Gillies or bis father or the cattle company.
The defendants claimed that Murdoch's cow got with the herd by mistake and without their knowledge in gathering or driving the cattle from the range, or that she was in or about the corral when the cattle were driven in the yard, and was, without their knowledge and by mistake, loaded on the ears.
It is contended that the court erred in receiving the testimony of the conversations bad in Puffer’s absence. The objection in the court below was separate, and was made on behalf of Puffer alone. The state seeks to defend the ruling, and contends that the evidence was admissible as against both defendants, on the theory of a conspiracy or combination between the defendants to commit larceny, and that the statements made by Gillies in the conversations were made in furtherance or in pursuance of such unlawful act or acts, and before the consummation by them. That may be true as to the first conversation; but it cannot be true as to the subsequent conversations and those bad after the cattle bad been unloaded and the complaint filed. It may be
Furthermore, the statements made by Gillies did not harm Puffer. The only statement tending to do so in the first conversation is that “Stanley drove the cattle over” from the range to Milford. It, however, was testified to by both Gillies and Puffer that both gathered the cattle
The defendants were informed against for the larceny of but one cow, the property of Murdock. The state, over the objection of defendants, was permitted to show the number of cattle loaded by them on the cars at Milford, the different brands and marks upon them, the owners of the brands, and that there were twenty-nine head having brands belonging to persons other than Gillies or the cattle company. It is urged that such proof tended to show larcenies other than that declared on, and was therefore inadmissible.
Moreover, the evidence was relevant and admissible as bearing on the claim of the defendants that the cow was taken by them by mistake, and without their knowledge. The fact that twenty-eight head of other cattle
The defendants requested the court to charge that, before the jury could consider the possession of property as evidence of guilt, they must first be satisfied, beyond a reasonable doubt, that the property had been stolen, and that if they had a reasonable doubt as to whether the defendants took the cow intentionally and willfully, or by mistake and without knowledge that they had the cow, their verdict should be for the defendants. The court did not charge the jury in this language. It gave the usual charge as to the presumption of innocence, defined larceny and
The court also charged the jury:.
“I instruct you that if you find, beyond a reasonable doubt, that the defendants, or either of them, had the animal described in the information in their possession, and that such possession was without the consent or permission of the owner thereof, then you may consider and conclude whether or not the defendants, or either of them, intended, against the will of the owner, to permanently deprive him of the same; and in determining the intent of the defendants, or either of them, you may take into consideration the acts and' conversations of the defendants, or either of them, as testified to in the trial of this ease.”
Complaint is made of this. It is urged that this language gave the jury the license to convict either or both of the defendants upon the intent of either, and that the separate act or conversation of one could be considered
We think the judgment of the court below should be affirmed. Such is the order.