State v. James
164 N.W. 91
S.D.
1917
Check Treatment
ROLLEY, J.

Aрpellant 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 convictеd, and now seeks a reversal of the judgment of conviction upon the ground of alleged errors committed by the trial court.

*266[1] Appellant first contends., that the evidence, is not sufficient to establish the corpus delicti. The facts tending.-to establish the larceny are as' follows: The horses that are' claimed to have been stolen belonged to one George ’ Price. They hád been raised and had always been kept on a comparatively small range in the vicinity of Price’s ranch near Clover, in Meade county. They were last seen by-Price before the larcеny at his ranch, about the middle of June. They were next seen, some three or fo'ur weeks ■later, not far from the South Dakota line, in Custer county, -Mont., in the possession of appellant and said- Guffey. They were driven from there 'by said parties to Miles City, Mont. At that place appellant, claiming to be the owner of said horses, attempted to sell them. The horses had 'never been sold nоr otherwise disposed of by said Price. -Pie had never authorized any one to move or drive them from their usual range in Meade, county, nor did appellant attempt to account for his рossession .of them. Tírese facts are sufficient to establish the corpus delicti.

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 сorpus 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 seеn 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 cоnsidered in connection with the other evidence in the case, is sufficient to warrant the inference by the jury that the horses had been stolen.

[2] The admission of certain testimony relative to thе acts and conduct of said Guffey, while not in the presence or hearing of appellant, is assigned as error. This testimony was objected to on the ground that it was immaterial, and was incomрetent as against appellant, because it had not been shown that appellant and Guffey were acting pursuant to a concerted plan or understanding entered into by them to steal said horses. The testimony *267complained of tended' to show that Guffey was in the vicinity of Price’s ranch at about the time the horses must have been taken. Such testimony was material for the purpose of showing that Guffey was in that vicinity at that time, and1 was competent as against' appellant, provided there was other evidence sufficient to connect Guffey with appellаnt in the taking of the 'horses. There was also evidence tending to show that appellant was at Isabel, in Dewey county, at about the time the horses • must have been taken. We believe the ‍‌‌​​‌​‌‌‌​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌‌​‌​‌​​​‌‌​‌‌‌‌​​​​‌‍еvidence was sufficient to establish such-connection. The fact that Guffey and appellant were in joint possession and control of the horses when first seen after they had been- takеn from Price, and that they remained in the joint possession and control' of them- until they reached Miles 'City, is sufficient to. show, prima facie at least, that they were 'acting in concert in an' effоrt to deprive Price of' his horses aiid in furtherance of a common design to effect that -purpose. We believe this testimony was properly admitted.

[3] At the trial the court charged the jury as follows:

“I charge you, gentlemen of -the jury, thаt 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 excеpted' 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-iquоted 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 possеssion, 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 рart 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*268tion, as a whole, is good as against the criticism made by the defendant.

[4, 5] But we do not approve of the instruction, either as given by the cоurt or as requested -by defendant. Possession of recently stolen property, even when such possession is unexplained, is not “a circumstance of guilt.” It is a circumstance to be taken intо' consideration by the jury in connection with all the other facts in the case. But, inasmuch as the instruction given, by the court is substantially the same as requested by the defendant, the error was not prejudicial, and therefore cannot be ground for reversal:

[6] The trial court instructed the jury that, if they were satisfied, beyond a resonable doubt, that the horses described in the information were stolen in Mеade county, and that the appellant, ‍‌‌​​‌​‌‌‌​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌‌​‌​‌​​​‌‌​‌‌‌‌​​​​‌‍by himself or in company with another, stole them in Meade county, they should find1 him guilty as charged in the information. This instruction is excepted to .upon the following grounds:

“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 infоrmation; 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 сlaimed ,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 thе 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 *269horses in question belong-ed to George Price, and no reference was made in the evidence, or by court, to any horses except the ones described in the information as the horses of George Price. Thеrefore the jury could not have been misled by the instruction complained of, or have understood that such instruction authorized-them to convict the appellant, unless they were satisfied bеyond a reasonable doubt that appellant had: stolen the identical horses described in the information.

[7, 8] The second ground of the exception is not well taken, because all оf the evidence relative to the taking of the horses tended to show that they were taken by appellant and his codefendant, Guffey. And the same is true of the third ground. The trial court had' alreаdy defined grand larceny, and when, in succeeding portions of the charge, the court used the word ‍‌‌​​‌​‌‌‌​‌‌‌‌​​‌‌‌‌‌‌​‌‌‌​‌‌​‌​‌​​​‌‌​‌‌‌‌​​​​‌‍“stole,” or “stolen,” it will be assumed that it meant the taking of the horses described1 in the information, -by fraud and stealth, and with intent to deprive the owner, George Price, thereof. The word “peimanently” is not contained in the statutory definition of larceny, and it was not necessary that it should be included in the instruction of the court.

[9, 10] Appellant assigns as error the refusal of the trial court to give certain instructions requested by him. Sortie of these instructions correctly state the law applicable to the facts in this case; but, upon comparison with the instructions given by the court, we find such requested instructions, to .be substantially covered by the instructions given by the court. This cured any error that might have resulted from the court’s refusal to give such requested instructions. The other instructions requested by appellant are not applicable to the facts in this case, and it was not error for thе trial court to refuse to, give them.

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.