70 P. 526 | Or. | 1902
delivered the opinion.
The defendant and one Manny Howard were jointly charged by an information filed by the district attorney of the Eighth Judicial District with the crime of larceny by stealing a mare, the property of R. R. Palmer and H. E. Denham. The defendants severed on their trial. Meldrum was convicted, and appeals. The evidence against him tended to show that in the spring of 1901 he and Howard, assisted by two or three others, were engaged in gathering horses from the range a few miles from Baker City for shipment. Palmer, one of the owners of the mare alleged to have been stolen, passed them on the road,
Complaint is made on account of certain instructions given, and others refused. The court charged the jury, in substance, that it is not every taking and carrying away of the property of another that Avill constitute a larceny, but a felonious intent must be shown to have accompanied the taking, and in determining such intent they had a right to take into consideration all the' testimony and circumstances bearing upon that, matter. If they believed from the evidence that the OAvners of
It is also urged that the court erred in refusing certain instructions requested. But these were covered by the general charge. Instructions 1 and 3, as requested, are to the effect that if defendant took the animal alleged to have been stolen, under the authority of the owners, and held her for them, he could not be convicted, even though the brand was subsequently changed by him while the mare was in his possession, and in such case it would be the duty of the jury to disregard all evidence of the change in the brand, and acquit the defendant. The substance of both of these instructions, as far as material, was given by the trial court in the instructions already alluded to; and, moreover, there was no error in the court’s refusal to give them as requested, as both omitted any reference to the intent with which the animal was taken.