264 P. 875 | Idaho | 1928
Appellant, charged with one Brosig with the larceny of a cow, was found guilty while Brosig was acquitted. Appellant assigns insufficiency of the evidence to sustain his conviction, urging inconsistency of such a conviction with the acquittal of his co-defendant.
An information, though joint in form, is regarded as a several charge against each defendant, where it charges an offense which may be committed by one person alone. (31 C. J., p. 757, sec. 319.) And one defendant may be convicted thereunder, although another is acquitted. (16 C. J., p. 1101, sec. 2591; State v. Haynes,
The alleged owners of the animal identified it as theirs and testified that they had not disposed of it to appellant or anyone else. Other witnesses identified it, and testified that appellant had shipped it, with other cattle, to a firm in Utah.
Defendants adduced evidence tending to prove that the animal described in the information had been raised and owned by a defense witness, sold to appellant's co-defendant, Brosig, and by him traded to appellant. Appellant argues that since the jury exonerated Brosig, it could not lawfully have found appellant guilty, since, if Brosig be innocent of larceny, appellant, who procured the animal from Brosig, cannot be guilty. Such position assumes the truth of the evidence of the defense witnesses, and the accuracy of their identification of the animal, and the untruth, or at least mistaken identification, of the state's witnesses.
The jury may have believed that Brosig bought an animal identified by him and the previous owner and other witnesses as the one in controversy, and traded it to Jackett, but that in fact such animal was not the same one as the one in controversy, and have believed the state witnesses that the animal identified by them was theirs, and was a stolen animal found in the possession of defendant, and not the same animal testified to by Brosig and defense witnesses; in other words, that defendants' witnesses were *723 mistaken as to the particular animal, and that it was not the same one, and never was in possession of Brosig; or, they may have disbelieved the defense witnesses entirely.
It is contended that the mere possession and sale of the animal was insufficient upon which to convict the defendant. Unexplained possession of recently stolen property is a circumstance to be considered by the jury, from which the guilt of the accused may be inferred. (State v. Bogris,
Other evidence, unexplained, and its admission not complained of here as error, tended to establish that other cattle stolen from the same neighborhood were found with this animal in Utah.
The jury evidently believed the state's witnesses. There is a direct conflict in the evidence and sufficient evidence to support the verdict. The judgment is affirmed.
Wm. E. Lee, C.J., and Budge, Givens and T. Bailey Lee, JJ., concur. *724