164 N.W. 91 | S.D. | 1917
Appellant and one Guffey were jointly charged with the larceny of a band of horses in Meade county. Appellant requested and was granted a separate trial. He was convicted, and now seeks a reversal of the judgment of conviction upon the ground of alleged errors committed by the trial court.
Counsel for appellant cite and rely upon State v. Beard, 34 S. D. 76, 147 S. W. 69, in support of their contention that the corpus delicti was not shown. The facts in the two cases are not similar. In that case it is said:
“It was not shown that the horse in question was ever lost or missed. * * * No evidence as to the whereabouts of the horse subsequent to October, 1912, was- offered, until it was shown to be in possession of the defendant in March, 1913.”
■In this case not over three weeks elapsed from the time the horses were seen at home by their owner until they were seen in the possession of defendant in Montana. This fact, in the absence of any attempt by defendant to account for their possession, when considered in connection with the other evidence in the case, is sufficient to warrant the inference by the jury that the horses had been stolen.
“I charge you, gentlemen of -the jury, that the possession oi stolen property, immediately after it is stolen, is a circumstance of guilt, which the jury have a right to consider with all the other evidence in the case.”
This instruction is excepted' to because the court did not say that it is the unxplcdned' possession of stolen property immediately after it is stolen that is a circumstance of guilt that may be considered by the jury. What might have been the result, had the above instruction stood alone and unqualified, it is not necessary to determine. But in the closing part of the paragraph of the court’s charge, in which the above-iquoted language is fo-un'd, the court used the following language:
“You would also consider what, if any explanation has been offered or received in evidence concerning that possession, and if that explanation should be satisfactory and such as would be reasonable,’ that would be a circumstance for you to' consider with all the other' evidence in the case. * * *”
This part of the instruction clearly to-ld the jury that they must' consider any explanation made by the defendant of his possession of the stolen property, and is a sufficient' qualification of the portion of the instruction complained 'of, and the'instruc
“First, that it does not include all the elements of larceny, as it instructs the jury that they can find the defendant guilty, without finding that the property was the property of George Price, as alleged'fih the information; second, that the instructions assume that some other person aided or aibetted the defendant in the larceny of the horses, while there is no competent evidence to that effect; third, that the instruction fails to include all the necessary elements of larceny, in that it fails to recite that the jury must find that the property was taken with intent to deprive the owner thereof permanently.”
While this instruction is by no means as full as it well might foe, we are unable to see how it in anywise prejudiced the appellant. This instruction, like the one above considered, must be read in connection with other portions of the instructions of the court. The trial court read the information as a part of his charge to the jury. This contained a description of the horses claimed ,to' have been stolen, together with an allegation of their value, and that they were owned by George Price. It then alleges that the horses were taken by appellant and the said Guffey by means of fraud and stealth, and with intent to deprive the owner thereof. In addition to- this, the court gave the jury the statutory definition of larceny. . It is not disputed that the
Upon a careful examination of the entire record in this case, we feel that the appellant had a fair trial, and that the verdict is fully supported by the evidence.
The judgment and order appealed from are affirmed.