| Idaho | Jan 24, 1898
The defendant was convicted of tbe crime of grand larceny, and from such judgment of conviction takes this appeal.
The facts, as they appear from tbe record, are substantially as follows: Tbe defendant and one Eugene Bandolph and one George Cantwell were, on tbe twentieth day of December, 1896, confined in the county jail of Ada county, and on that day broke jail, and in their efforts to escape recapture they entered the barn or stable of one 0. H. Jackson, at Orchard Farms, in said county, in the night-time and took therefrom the animal described in the information. They severally rode the animal for a distance of some twenty or twenty-five miles, reaching Snake river, which they desired to cross for the purpose of getting out of the state of Idaho. The defendants and his companions were unable either to cross the river or get the animals across. There were two animals (horses) taken by them from Orchard Farms, and, after reconnoitering the bank of the river for some time to find means of crossing, and being unable to do so, they turned the horses loose. The defendant and his two companions, Cantwell and Bandolph, were shortly afterward recaptured. Prior to their recapture, one De Wire came upon them while they were in a cabin near Snake river, and recovered the mare in question. De Wire testifies that he found the mare loose near where these parties were stopping. The defendant told De Wire that he had nothing to do with the taking of the mare; that he “knew nothing about it.” Bandolph, who was informed against jointly with the defendant and Cantwell, testified that the defendant, one Williams (who escaped from the jail at the same time with defendant, Cantwell, and Bandolph), and him sel f went into the barn at Orchard Farms together; that he (Bandolph) put the bridle on the mare, and defendant put the saddle on her; that both defendant and Williams rode her for some distance; that when they arrived at Snake river they first tied the horses at or near the cabin; that afterward defendant untied and turned them loose. The defendant, testifying in
The first and fourth instructions, the refusal to gire which is urged as error, were as follows: 1. “To find the defendant guilty under the information, the jury must believe from the evidence, to a moral certainty, and beyond a reasonable doubt, that the defendant, at the time he took the said mare, took her with the felonious intent to convert her permanently to his own use.” 4. “If the jury believe from the evidence that the defendant took the animal as alleged in the information, without the intent to permanently deprive the owner of the said animal, then the jury must acquit.” The contention of counsel for the appellant is that, in refusing to give the foregoing instructions, the court took the question of intent entirely from the jury. Now, the defendant swears that he had nothing whatever to do with the taking of the stolen horse, and yet his counsel insists upon the court giving an instruction based upon evidence which would convict the defendant of perjury. Put plainly, the contention of counsel is this: The court should have instructed the jury, if they believed from the evidence that the defendant had sworn falsely, and that he did take the horse, then the jury should further find that he took the same with intent to “permanently” deprive the owner thereof. But the court did give the following instruction: “The jury are instructed that, if they believe from the evidence that the defendant had no felonious intent to steal the property described at the time' he took it, the jury must acquit, even if they should believe that defendant subsequently conceived the intent of appropriating the said animal.” This instruction left the whole question of intent to the jury, and on the whole was too liberal as to an intent eon-