61 N.W.2d 274 | N.D. | 1953
The defendant Orlando Larson was charged with the crime of grand larceny by appropriating to his own use a stray cow, the property of one James Stone without giving the notice as required by law. He was .tried in, the district court of Bottineau County, North Dakota and the jury returned a verdict of guilty of grand larceny as charged in the information. The defendant made a motion for a new trial on the grounds that the verdict was contrary to the evidence. The motion was denied. The defendant appealed from the judgment. The only question presented on this appeal is whether the evidence was sufficient to sustain the verdict. The substance of the testimony adduced at the trial is as follows:
The defendant is the owner and operator of a 960 acre farm in Bottineau County adjoining the Canadian Boundary line. He is engaged in farming and raising of livestock. The complaining witness James Stone lives in Canada on an 80 acre tract of land 1% miles north of the boundary line and 3 to 4 miles west from the farm of the defendant. He does a little farming and raises a few cattle and horses. In the winter time he is engaged in trapping. At the time of the alleged larceny by the defendant the complaining witness had 5 head of cattle and among them was a small black cow weighing from 1,000 to 1,050 lbs. This cow had what he called “nice small horns”. On the 6th day of December this cow strayed from his farm. He made telephone inquiries in the surrounding neighborhood but was unable to locate her. About a month after the cow had strayed away the complaining witness and one of his neighbors, Louis Racine, went to the farm of the defendant. The defendant’s cattle were in the barn yard feeding and the complaining witness and his neighbor Racine went directly to the place where the cattle were feeding and there discovered the black cow which the complaining witness identified as the cow that had strayed away from his farm. He noticed however that the cow had recently been dehorned. After having seen this cow among the defendant’s herd, they went to the barn where they met the defendant and inquired if he had seen any stray cattle or a stray black cow to which he replied that he had not. They then left the defendant and the complaining witness
“The question of the credibility of the witnesses and the credence to be given to their testimony was a matter for the jury, and its finding, based upon conflicting evidence, is binding upon this court.” State v. Cray, 31 N.D. 67, 153 N.W. 425, 426.
In the case of State v. Ugland, 48 N.D. 841, 187 N.W. 237, 238, it was held:
“The finding of the jury is binding on this court when based upon substantial, competent evidence that, in- any reasonable view thereof which the jury-has a right to take, justifies the verdict.”
See also State v. Burcham, 44 N.D. 604, 176 N.W. 657.
Likewise in the case of State v. Wheeler, 38 N.D. 456, 165 N.W. 574, 577, this court said:
“The jury being the exclusive judges, of fact, and having seen all the witnesses on the stand, and having had an opportunity to observe their app.eay-.*276 anee, willingness or 'unwillingness with which they testified, 'and having'' returned a verdict of guilty, the same is conclusive upon us; there appearing to be no prejudicial reversible error.” " ;
While the evidence in -the instant case was ' Conflicting, ‘ it nevertheless was sufficient to warrant the" jury in finding the defendant guilty of grand larceny as charged.
The judgment of the district court is af-r firmed.