182 N.W. 458 | N.D. | 1921
The defendant was convicted upon an' information charging him with the larceny of three milch cows in Mercer county. The trial court ordered a new trial upon the insufficiency of the evidence to show the commission of the crime in Mercer county. The state has appealed from the order. The complainant was a farmer in Mercer county engaged .in the dairy business. On May 2.6, 1920, in the morning, he put ten milch cows and som,e other cattle in a pasture on his farm, consisting of some 200 acres fenced. This pasture -had two gates, and in places the fence was not in good condition, although
In a conversation which the complainant had with the defendant at the time of the preliminary examination and afterwards, the defendant admitted that he had got the brand from his father, a neighbor of the complainant in Mercer county; that he branded the cows; that he purchased them from one Schaffner on May 26, 1920, and had brought them'to the farm on May 27, 1920; that he had given to Schaffner a note and mortgage for such cows. After the preliminary examination, the defendant went to see the complainant, and made some offer of settlement by stating that he- would -work his whole life to pay for the trouble.
Schaffner, as a witness, testified that he did not sell these cattle to the defendant; that he never received any note or mortgage from him therefor; and that he had not seen the defendant until he came out with an attorney-to see him (which was after the cows had been taken back by the complainant). The pasture of the-complainant was about 4 miles from the Dunn county line. No direct evidence appears in the record that the defendant was within the county of Mercer between the time when the cows were lost and were found. ' At the trial, on the conclusion of the state’s case, the defendant moved to dismiss because of the failure to prove the commission of the crime within Mercer county, -and then submitted the case without introducing any testimony in behalf of the defendant.
'■ The justice of the peace; in his' return of- the proceedings had at the preliminary hearing, did not-indorse upon the complaint or in his
The evidence adduced was sufficient to warrant the verdict of guilty returned by the jury. This the defendant does not deny. The jury also were warranted in finding that the defendant had the possession of stolen property, recently, after it was stolen. This gave rise to the presumption of fact that the recent possession of stolen property, not satisfactorily explained, is an evidentiary fact from which the crime of larceny may be imputed. State v. Rosencrans, 9 N. D. 163, 82 N. W. 422; State v. Ross, 46 N. D. 167, 179 N. W. 993. Upon this record, larceny, if any, was the stealing of the cows from the possession of the complainant. The trial court charged the jury that it was necessary and incumbent upon the state to prove beyond a reasonable doubt that the defendant did commit the crime charged in the county of Mercer, or that he did partly commit it in such county, before a .conviction could be had. Upon this record, in connection with the presumption quoted, the jury wore warranted in finding that the property was stolen from the possession of the complainant in Mercer county. This presumption quoted applies, likewise, when such property is found in the possession of another in another jurisdiction. McGuire v. State, 6 Baxt. 621; Graves v. State, 12 Wis. 592; 25 Cyc. 134. The trial court accordingly abused its discretion in granting a. new trial.
We are further of the opinion that the trial court did not err in revising to set aside the information because the justice of the peace did not make the formal indorsement upon the complaint or in his docket, pursuant to § 10,611, Comp. Laws 1913. It appears from the proceedings had before the justice that a preliminary hearing and the rights and privileges prescribed by law were accorded to the defendant. No prejudice to the defendant is shown by reason of the justice’s failure to make the indorsement or entry in the formal words of the stat