State v. Ireland

75 P. 257 | Idaho | 1904

SULLIVAN, C. J.

The defendant was convicted of the ■crime of grand larceny at the August term of the district court in Custer county, and was sentenced to confinement in the penitentiary for three years. By information of the county attorney defendant was charged with having stolen a black horse, the property of one Bybee. The appeal is from an order denying a new trial and from a judgment. Counsel for appellant assign thirty-seven errors as the basis for reversal of the judginent. It is contended by counsel for appellant that in the information the title to said horse is alleged to be in said Bybee, and that on the trial it was proved to be in the firm of Bybee & J ones, and that this is a fatal variance. A deposition of said Bybee was introduced in evidence on the trial, and in that said Bybee testified that he was the owner of said horse. Thereafter one Jones testified as a witness for the state that he was a partner of said Bybee, and that they jointly owned the horse. During the trial a written bill of sale from said Jones to By-bee of said horse, dated June 12, 1903, was introduced in evidence. It was a question for the jury to determine as to who was the owner of said horse, and even if the evidence shows that said animal belonged to the partnership of Bybee & Jones, and not to Bybee, as alleged in the information, we think the variance was not fatal.

This court held in State v. Farris, 5 Idaho, 666, 51 Pac. 772, that where the information alleged one C. to be the owner of the stolen property and the proof showed that he was in possession of the property as the agent of the real owner with full power to sell or otherwise dispose of the same, variance was not fatal. And in State v. Rathbone, 8 Idaho, 161, 67 Pac. 186, where the title to the stolen property was alleged in the information to be in George M. Brown, and the proof showed that it was the property of George M. Brown and ft. L. Brown, this court held that the variance between the allegation and the proof was not fatal.

In the territorial'days of our supreme court, it was held in People v. Frank, 1 Idaho, 200, that in an indictment for larceny where the property is alleged to be that of W. and on the trial it is proved to be that of W. & Co., the variance is fatal. We are not inclined to follow the technical rule there laid down, and as to that point overrule that decision. (See People v. Clark, 106 Cal. 32, 39 Pac. 53; Henry v. State, 45 Tex. 84.) Section 8236, Bevised Statutes, provides as follows: “Section 8236. Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right.”

Could it possibly prejudice any substantial right of the defendant whether the stolen animal belonged to Bybee alone or to Bybee & Jones as partners? We think not. Bybee certainly had an interest in it if he was only half owner thereof.

In the Texas case above cited the defendant was indicted for the theft of “two certain oxen of the value of $20 each, and both of the value of $40, the property of Mrs. Mary Cobb.” Upon the trial it was shown that the oxen belonged to Mrs. Mary Cobb and others. It was held that the variance between the proof and the averment in the indictment was not fatal. However, we think from the evidence that the animal stolen was the property of Bybee.

The second contention of counsel for respondent is that there was an utter failure of proof of want of consent to the taking of said property. We have examined the evidence on this point and it clearly shows that the taking thereof was without the consent of the owner. It also shows that if the animal belonged to Bybee & Jones, that the taking was without the consent of both or either.

The admission of the deposition of the witness Bybee on behalf of the state is assigned as error. In State v. Potter, 6 Idaho, 584, 57 Pac. 431, this court had under consideration the question whether it was error to admit on the trial of the case a deposition taken on the preliminary examination, and it was there held that it was error to admit such deposition. That was the only question before the court in that case. If there is any language used there that would indicate that a deposition taken under the provisions of section 7588 of our Revised Statutes could not be used by the state on the trial of the ease, such language was mere dictum and was not necessary to the decision of that case, and was overruled.

In the case of State v. White, 7 Idaho, 150, 61 Pac. 517, this court held that it was not error to admit in evidence a deposition taken under the provisions of said section 7588 of the Revised Statutes. Under the provisions of that section, a witness, under certain circumstances, may be conditionally examined. And it is evident that in the enactment of said section and the three sections immediately preceding it, it was intended that such deposition might be used by either the state or the defendant on the trial of the ease. The deposition objected to was taken in accordance with the provisions of said section 7588, and, as the record shows, the witness could not be procured, after reasonable diligence, to testify on the trial, the admission of said deposition was not error.

Before the state can use a deposition taken under the provisions o-f said section, it must be shown that the state has used reasonable diligence to procure the attendance of such witness and has been unable to do so.

It is contended that the evidence is insufficient to sustain the verdict, as there is no evidence whatever to contradict the explanation of defendant of his possession of the stolen horse. We cannot agree with this contention. We think his explanation of his possession was a strong circumstance tending to show his guilt. It was not sufficient to create any doubt of his guilt. The common defense, in such cases, is the purchase of the property stolen from an unknown person, and the jury are the judges of the weight to be given to such evidence, and we think they gave it in this ease the full weight it deserved.

We have examined all of the errors assigned by counsel for the appellant, and conclude that it is not necessary for us in this opinion to refer particularly to each assignment, but it is sufficient to say that we find no error in the record, and for that' reason the judgment of the trial court is affirmed.

Stockslager and Ailshie, JJ., concur.