State v. Hoffman

53 Kan. 700 | Kan. | 1894

The opinion of the court was delivered by

HoetON, C. J.:

The defendant was convicted of grand larceny and sentenced to the penitentiary of the state for the term of two years and six months. He* appeals.

I. It is insisted that the information for grand larceny was defective; that, instead of charging the taking of four head of “neat cattle,” it should have charged the taking of four steers. In support of this, it is said that the term “neat” may mean “nice” or “clean.” We think the description in the indictment sufficiently specific. “Neat cattle,” in the statute describing the offense of grand larceny and in the information, does not mean “nice” or “clean.” “Neat cattle” are animals of the genus bos, as distinct from horses, sheep, and goats. (Bish. Cr. Proc., § 700; Johnson v. The State, 1 Tex. App. 118; Hubotter v. The State, 23 id. 479; The People v. Winter, 9 Cal. 234.)

II. It is next insisted there was a total failure'of proof that the defendant was guilty of the larceny charged in the information. In view of the general verdict of guilty, and the approval thereof by the trial court, all of the evidence must be considered in its most favorable light to support the conviction. We are of the opinion that the evidence was sufficient to justify the verdict and sentence.

It appears from the record that in June, 1893, Julius Panzram, living in Chase county, in this state, was the owner of four dehorned steers, all three-year-olds, and branded with a “Box P” on the left hip. One of them was a dun color, two were spotted, and one red. One of them had a hole in the ear. If any of the others had holes in their ears, Panz-ram had not noticed it. He bought them from a man named Schultz, marked as they were. He missed the cattle from his pasture, in Chase county, on the morning of June 26, 1893. The first part of July, 1893, he found all of them, except the dun steer, in the possession of Kygger & Liggett near Stanberry, Mo. He recognized his three cattle from some 20 other cattle in the pasture about J00 yards from them. He picked them out before he was close enough to see the brands, and requested Kygger, who was with him, to go and examine the cattle and ascertain if they were branded with “Box P” on the left hip as his were. Kygger made the examination and discovered that the three cattle claimed by Panzram were branded as he had described, and that they were dehorned. He also found that there were no other cattle in his yard with a similar brand. The defendant, who is a farmer, lived, in June, 1893, about six miles from where Panzram kept his cattle. He shipped 16 head of cattle in a car, on the night of June 28, 1893, from Cedar Grove, in Chase county, to Verner & Scroggins, a commission firm at Kansas City. The defendant testified there were nine cows and seven steers in his car. He accompanied the cattle to the stock yards at Kansas City, about 148 miles from Cedar Grove. After Panzram missed his cattle, he met the defendant in the road, and concerning such meeting and the conversation between them testified as follows:

“Ques. Did you have any words with him? Ans. Yes, sir.

“Q. State your conversation. A. Says I to the defendant, ‘I understand you shipped some cattle?’ He answered, ‘Yes, sir.’

“Q. Had you then learned he had shipped some cattle? A. Yes, sir; I had learned that. Says I, ‘ How did you come out?’ ‘Oh, pretty good.’ ‘Make on it?’ ‘Yes, $27.50.’ Says I, ‘What did you ship?’ ‘Cows.’ ‘All cows?’ ‘Yes, all cows.’ That was about all of the conversation.”

The cattle shipped by Hoffman, which were not all cows, as he untruthfully informed Panzram, went to the stock yards in car No. 51010, and was the only car load of cattle he shipped to Verner & Scroggins within a year of that time. The car with the cattle reached Verner & Scroggins on the morning of June 29, 1893, and they were unloaded into pen 10, block 7, at the yards. Scroggins went wi h Hoffman to the pen to see the cattle, and they talked about the price. Scroggins paid Hoffman for the cattle, partly in cash and partly by draft..

C. H. Hill was the salesman for Verner & Scroggins. He testified that Hoffman’s cattle in the pen consisted of eight steers and eight cows, which would make one steer more and one cow less than Hoffman testified to. Hill sold the eight steers, part horned and part dehorned, on the 29th of June, 1893, to W. C. Trower, a cattle speculator, and Trower was at pen 10 at the time he made his purchase. He kept the steers for several days, and then sold them to W. F. Moore, with the exception of the dun steer, which he kept a few days afterward, and then sold that animal with other cattle, but did not recollect where this lot went to. After Trower purchased the eight steers he moved them from pen 10 to pen 22, in block 24, of the stock yards. When Trower sold them to Moore they were in pen 22, and after Moore bought them he put them in pen 13, block 36, and then shipped them with other cattle to Kygger & Liggett, at Ravenswood, in Noda-way county, Missouri. Moore would not buy the dun steer from Trower. He testified “that three of the seven head he purchased were dehorned, were three-year-olds, were all branded alike on the hip of the left side, and that two of them were spotted and white, and one red.” His description is identical with Panzram’s, except that the latter was better acquainted with the brand of his own cattle. Moore also testified that none of the other cattle he shipped to Kygger & Liggett with the three he brought from Trower were, to the best of his opinion, branded. He seriously objected to the three he purchased on account of being branded. Kygger drove the cattle from Ravenswood to his pasture near Stan-berry, where Panzram identified his three steers.

The jury were the judges of the credibility of the witnesses, and also of the weight of the evidence. If the evidence of the state is to be believed, four steers were stolen from Julius Panzram, about June 26, 1893. Three of them were found, and fully identified by him, near Stanberry, Mo., in the early part of July, 1893. These cattle, according to the evidence of the state, are the same the defendant shipped and sold to Verner & Scroggins at the stock yards at Kansas City, which were subsequently shipped to Kygger & Liggett. Hoiiman was with the cattle in pen 10, block 7, at the stock yards in Kansas City, both with Scroggins and Hill, who sold the cattle trom the pen as Hoffman’s cattle. The objection to the verdict, upon the ground that there was an entire absence of material facts necessary to be found for a conviction, is not tenable. The evidence of the state, if believed, not only identified the subject-matter — the steers— but also identified the person in possession of the stolen cattle soon after they were stolen. There was also other evidence that the defendant was guilty.

III. It is further insisted that the trial court erred in instructing’ the jury, among other things, as follows:

“ That the possession of stolen property, recently after it has been stolen, throws upon the possessor the burden of explaining such possession, and, if unexplained, may be sufficient of itself to warrant the jury in convicting the defendant of the crime of grand larceny. Of course, it must be so recent after the time of the larceny as to render it morally certain that the possession could not have changed hands since the larceny.”

The defendant did not admit that he took the steers owned by Panzram innocently or by mistake. His evidence was a denial of any possession or knowledge of Panzram’s steers. He claimed that the 16 head of cattle he shipped to Kansas City belonged to him, or members of his family. He made no pretense that any were purchased or obtained from Panz-ram. This case, therefore, differs from The State v. Warden, 8 S. W. Rep. (Mo.) 233, and many similar cases. Notwithstanding the conflict of the courts concerning the possession of stolen property, we see no good reason, in such a case as this for not adhering to the rule of The State v. Cassady, 12 Kas. 550. A similar instruction was approved in that case. In 1 Greenl. Ev. (15th ed.), § 34, it is stated “That possession of the fruits of crime recently after its commission is prima faeie evidence of guilty possession; and, if unexplained either by direct evidence or by the attending circumstances, or by the character and habits of life of the possessor, or otherwise, it is taken as conclusive.” The possession of the stolen cattle by the defendant was unexplained, either by direct evidence or by attending circumstances. All the other persons who had possession or anything to do with the stolen cattle, after they were missed by Panzram up to the time he found three head of them near Stanberry, explained fully their possession, where they bought them, and what they paid for them. The defendant relied upon proof of his good character, not upon any explanation of his possession, except his absolute denial thereof. He offered evidence of his good character for honesty in the neighborhood where he resided. That was a matter for the consideration of the jury. The court so instructed them in the following language:

“The evidence of previous good character is competent evidence in favor of the party accused of a crime, as tending to show he would not be likely to commit the crime alleged against him, and in this ease, if you believe from the evidence that, prior to the commission of the alleged crime, the defendant had always borne a good character for honesty and a law-abiding citizen among his acquaintances and in the neighborhood where he lived, then this is a fact proper to be considered by you, with all the other evidence in the case, in determining the question whether the witnesses who have testified to facts tending to criminate him have been mistaken, or have testified falsely or untruthfully; and if, after a proper consideration of all the evidence in the case, including that bearing upon his previous good character, you entertain any reasonable doubt of the defendant’s guilt, then you should acquit him.”

We have examined the other alleged errors, including the one for a new trial on account of newly-discovered evidence, but find nothing substantial in them, and, upon the whole record, the judgment of the district court will be affirmed.

All the Justices concurring.