182 P. 149 | Or. | 1919
Lead Opinion
“If any person shall commit the crime of larceny by stealing any horse, gelding, mare, mule, ass, jenny or foal, bull, steer, cow, heifer, hog, dog or sheep, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years, or by imprisonment in the county jail not less than three months nor more than one year, or by fine of not less than $50 nor more than $1,000. ’ ’
There is another statute, Section 1954, L. O. L., which is here quoted:
“If any person shall willfully and knowingly make, alter or deface any artificial earmark or brand upon any horse, mare, gelding, foal, mule, ass, jenny, sheep, goat, swine, bull, cow, steer or heifer, the property of another, with intent thereby to convert the same to his*623 own use, such person shall be deemed guilty of larceny, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than one nor more than five years.”
As the indictment is drawn under the former section, it must be considered solely with reference to that standard, for, as taught in State v. Howard, 41 Or. 50 (69 Pac. 50), the two offenses are distinct and a conviction cannot be had under an indictment charging one offense when the evidence points exclusively to the other. There is no evidence in the record of any actual asportation of the property from the custody of the true owner. As stated, all the evidence of property rests upon the testimony concerning the presence of mutilated brands on the animals listed in the indictment. It is said in Section 8 of Chapter 33, Laws of 1915:
“In all suits at law or in equity, or in any criminal proceedings, when the title or right of possession is involved, the brand of any animal shall be prima facie evidence that the animal belongs to the owner or owners of the brand, and that such owner is entitled to the possession of the animal at the time of the action; provided, that such brand has been duly recorded as provided by law.”
So far as this statute is concerned, without reference to the presumptions of innocence, regularity of private transactions and the like and confining ourselves to the mere presence of a brand upon an animal which is all the statute deals with, the same presumption must affect' any brand coming within the purview of the enactment, viz., a recorded brand found upon the animals in question. The statute says nothing about age or priority of brands and in construing it or giving value to the prima facie presumption it creates, we cannot read into the law anything of that kind. Viewing the
“What appears to be required, is that there shall be some fact deposed to independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference, not only that a crime has been committed, but that the prisoner is implicated in it.”
The deduction is that the mere presence of the defendant or his hired man on the range where his cattle and those mentioned in the indictment were being pastured and where both of the men had a right to be, is not a circumstance sufficient to establish the asportation of the animals included in the charge, which were all the time ranging there.
Whether or not it is a happy expression to speak of balancing the statutory presumptions arising from the presence of two or more brands upon an animal, it refers only to the proof of ownership of the cattle. In the absence of any testimony competent to show that the defendant branded any of them or aided or abetted in such branding, it cannot affect the element of asportation so requisite to constitute larceny.
It is said in 17 E. C. L., page 73:
“The general rule that the possession of stolen property is evidence of guilt is limited by the rule that to warrant an inference of guilt it must further appear that the possession was personal, and that it involved a distinct and conscious assertion of possession by the accused. It would be pushing the rule too far to require of one accused of a crime an explanation of his possession of the stolen property, when such possession could also, with equal right, be attributed to another. Hence the mere fact of finding stolen articles on the premises of a man of a family or in a place in which many others have free access without showing his actual conscious possession thereof discloses only a prima facie constructive possession and is not such a*627 possession as will justify án inference of guilt by reason thereof.”
Similar language is found in Underhill on Criminal Evidence (2 ed.), Section 33.
The following excerpt is taken from State v. Ford, 175 N. C. 797, 801 (95 S. E. 154, 155):
“In State v. Graves, 72 N. C. 485, Pearson, C. J., says that the presumption does not arise except when ‘the fact of guilt must be self-evident from the bare fact of stolen goods, and Hoke, J., in State v. Anderson, 162 N. C. 571 (77 S. E. 238), that it is only when he could not reasonably have got possession unless he had stolen them himself.’ The principle is usually applied to possession which involves custody about the person, but it is not necessarily so limited. ‘It may be of things elsewhere deposited, but under the control of a party. It may be in a storeroom or barn when the party has the key. In short, it may be in any place where it is manifest it must have been put by the act of the party or his undoubted concurrence’: State v. Johnson, 60 N. C. 237 (86 Am. Dec. 434).”
In People v. Hurley, 60 Cal. 74 (44 Am. Rep. 55), the syllabus reads thus:
“To justify the inference of guilt from the fact of possession of stolen property, it must appear that the possession was personal, and that it involved a distinct and conscious assertion of possession by the accused.”
In State v. Drew, 179 Mo. 315 (78 S. W. 594, 101 Am. St. Rep. 474), the defendant was charged with burglary and larceny in a store. Among other things stolen were some pieces of cloth, one of which was found in the defendant’s residence locked up in a trunk the key of which was in the custody of his daughter. The court held that:
“The finding of recently stolen articles on the premises of a man of a family, without showing his actual, conscious possession thereof, discloses only a prima*628 facie constructive possession, and is not such a possession as will justify a presumption of guilt by reason thereof.”
The same doctrine is taught in State v. Warford, 106 Mo. 55 (16 S. W. 886, 27 Am. St. Rep. 322); Cooper v. State, 29 Tex. App. 8 (13 S. W. 1011, 25 Am. St. Rep. 712); Lehman v. State, 18 Tex. App. 174 (51 Am. Rep. 298); People v. Friedman, 149 App. Div. 813 (134 N. Y. Supp. 153); Ex parte La Page (D. C.), 216 Fed. 256; People v. Wilson, 151 N. Y. 403 (45 N. E. 862).
In order to constitute larceny of the kind charged in the indictment there must be an asportation. The evidence was that all the cattle mentioned in the testimony were running at large on the public range or at least in places where cattle indiscriminately could and did go at will, and were so running at the time of the occurrence described by the witnesses. As stated, indeed, the testimony was to the effect that by far the greater part of the band where the cattle were found belonged to the defendant. One witness said about sixty were owned by another man and a few head in addition were the property of still other individuals. Under such conditions a felony is not to be imputed to the defendant respecting the animals in dispute on account of his owning the majority of the band. An inference might as well be drawn unfavorable to the owner of the sixty head. Under such circumstances, every animal is constructively in the possession of its owner and, as stated in State v. Childers, 71 Or. 340 (142 Pac. 333):
“Constructive possession cannot be in two people at the same time, whose interests are adverse to each other.”
The court was in error in not directing a verdict for the defendant on his motion at the close of all the evidence in the case. It is unnecessary to consider the other assignments. The judgment of the circuit court is reversed and the cause remanded for further proceedings. It is possible that the prosecution may be able to make a better case at another trial, but a conviction cannot be sustained rightly on the record before us. Reversed and Remanded.
Rehearing
On Rehearing.
(188 Pac. 702.)
In Bane.
This case has already been once before the court (182 Pac. 149), and a reversal was then ordered, upon the ground that there was no sufficient evidence to support the verdict.
There was a petition for a rehearing, the district attorneys for the districts of eastern Oregon generally joining therein as friends of the court. The petition was granted, and we have again carefully considered the questions involved, as presented at the second hearing.
Original Opinion Reaffirmed With Modification.
Mr. George M. Brown, Attorney General, Mr. G. H. Leonard, Mr. B. I. Kestor, District Attorney, and Mr. T. 8. McKinney, District Attorney, for the petition, with oral arguments by Mr. Brown, Mr. Kestor and Mr. Leonard.
Messrs. McCamant, Bronaugh $ Thompson and Mr. Herbert P. Welsh, contra, with an .oral argument by Mr. W. Lair Thompson.
The contention on behalf of the state, as we understand it, is that the mere fact that one man’s brand is found upon another man’s animal, is of itself, sufficient to support a conviction of the larceny, without any evidence direct or circumstantial
There was nothing presented at either hearing which would seem to us to justify adopting so extreme a doctrine or one so contrary to all the elementary principles of criminal law.
The statute in relation to brands has reference to lawful branding — not to unlawful. It makes the brand primary evidence of ownership. There is nothing in its terms to raise the presumption that an unlawful and larcenous brand was placed upon an animal by any particular person.
Any person who rides upon a range has it in his power to brand a stolen animal with the brand of a third person or with any brand he sees fit. All he needs to do so is a horse, a rope, and a running-iron, or a stamp brand, all of which, are easy to manufacture or obtain.
It is a well-known fact that owners of large bands of stock do not and cannot, in the nature of the business, do all the branding themselves. Many of them do not ride at all, or do any branding at all, but leave this entirely to their subordinates, who go out upon the range and gather and brand anything which they may believe to belong to their employer. These employees are subject to constant change. Some are discharged with more or less frequency, and others employed in their place. Often they are here to-day and gone to-morrow.
"Where a cattleman owns a considerable number, it is utterly impossible in most cases to trace or identify his cattle, except by brand. If the mere presence of his brand upon the wrong cow were alone enough to convict him of larceny, it would be easy for any dis
We fully realize the importance of the livestock business in the sections of the state where there is still a public range and the loss which such industry suffers each year from the depredations of stock thieves and cattle rustlers in such locations. The very nature of the business, where stock run upon the common range and are only identified by brands and earmarks, makes the commission of such crimes easy and their detection difficult and sometimes impossible. With the prosecution and conviction of the guilty in such cases we have the fullest sympathy.
We are not willing to write a new doctrine, contrary to all the elementary principles of the criminal law, and which will always imperil the innocent, in order to sometimes reach the guilty.
It seems to be assumed by the prosecution in this case that, if there is any competent evidence, however inconclusive — any circumstance, however remote— which a jury would have a right to consider, if submitted along with other evidence — that there is “evidence to support the verdict” under our constitutional provision and therefore the verdict must stand.
This question was carefully considered by the court in Schneider v. Tapfer, 92 Or. 520 (180 Pac. 107), in which it is said:
“We think, however, the constitutional provision did not intend to go further than to prohibit the court from re-weighing the evidence and revising the verdict of the jury in cases where there was conflicting evidence, or substantial evidence, to sustain the verdict. * * We hold that evidence merely suggesting a*634 suspicion or possibility, does not bring the case within the constitutional amendment, but that there must be substantial evidence upon which a reasonable man might reach a reasonable verdict.”
And Mr. Justice Harris says in an opinion concurring in the result:
“I acquiesce * * in the announcement that a verdict cannot be permitted to stand, if the evidence offered in support of it does no more than to raise a suspicion.”
In Martina v. Oregon-Wash. R. & N. Co., 73 Or. 283 (144 Pac. 104), Mr. Justice Ramsey, long after this constitutional provision was adopted, said:
“In order that a verdict may be supported by the evidence, there must be some legal evidence tending to prove every material fact in issue. ’ ’
Here one of the material facts was that the defendant, either by himself or another, did place the brand in question on the animals described in the indictment, since there was no other proof of any taking.
In this connection Section 697, L. O. L., which has never been changed or amended, is particularly pertinent to criminal oases. It provides:
“That evidence is deemed satisfactory, which ordinarily produce moral certainty or conviction in an unprejudiced mind. Such evidence alone will justify a verdict. Evidence less than this is denominated insufficient evidence. ’ ’
If these animals had been found in defendant’s immediate possession and control, as in his bam or sheds, or even, in some circumstances, in his field, a different question might arise, and there would, no doubt, be a presumption or inference that'he was responsible for the disfigurement and rebranding. The case would then be analogous to the case offered on behalf of the state, as an illustration, where stolen property is found in the room occupied by a defendant. Here there was no such immediate possession or control.
If we assume (what was not proven but is probably true) that so large a number of cattle would not ordinarily be likely to congregate voluntarily in so small a place, then there'might be a fair inference, from the facts of their being found there together with no one else in the vicinity, and that Silvers was met so near and coming from that direction, that he had gathered or rounded them up. This, however, would not of itself be anything unusual, nor would it show any exercise of ownership or possession of every animal in the bunch. It is a well-known fact in a cattle country, that it is impracticable, if not impossible, for a man who has a large number of cattle upon the range mixed with those of his neighbors, to separate them
In this case the undisputed evidence is, that the greater number of the cattle in this bunch bore the defendant’s brands. But from one fifth to one fourth of them belonged to other neighbors, who had cattle upon this same range. No doubt the fact that the cattle were found gathered in one place, and with so many of defendant’s cattle, was a circumstance to be considered by the jury, together with other evidence, if any had been offered, tending to connect the defendant with the re-branding; but it was not such an exclusive possession as would justify the presumption of theft by the defendant. If the cattle had been found with the brands freshly burned or their ears and dewlaps fresh and bleeding from the disfigurement, there might have been a just inference, from the circumstances, and the fact that Silvers was met coming from the immediate vicinity, that he was the party who had made the changes. But here, as we read the record, there was no claim that the disfigurement was immediately fresh. The evidence seems to show that the blotch designated as the “frying-pan brand” had been, probably, placed on the animal a few weeks before. One other brand was thought to have been made that season, and the remainder were old brands made one or two years before.
In 16 C. J., page 123, Section 106, the law, in relation to this is epitomized as follows:
“The civil doctrine that a principal is bound by the acts of his agent within the scope of the agent’s authority has no application to criminal law.' Therefore, the mere relation of principal and agent or of master and servant does not render the principal or master criminally liable for the acts of his agent or servant, although done in the course of his employment; it must be shown that they were directed or authorized by him. Moreover, a clear case must be shown.”
The only other fact which is claimed to strengthen the case against the defendant is the fact that, when the cattle were gathered in the corral at Lakeview, he said, “Some of them are mine,” and that on the witness-stand the defendant testified that he thought two of the animals, and possibly three, were his because his brand upon them seemed to him to be the oldest. He did not claim to know or identify the particular animals by their general description, and only claimed them upon the ground that his brand seemed to be the older.
One of these two, the frying-pan cow, was not proven in any way to belong to the persons charged in the indictment, and there was no evidence whatever that she had any other brand than the brand of the defendant, the points of which seemed to project below the blotch. The other one was a steer branded in defendant’s. brand above which was a comparatively
“I don’t know what else was under this 18; I think it was an ‘FG,’ but don’t know whether it was or not.”
And on cross-examination:
“Q. Could you distinguish any brand under that 18, or what were the indications to you that there was another brand there? Could you trace it out or what?
“A. No, I don’t believe I could.”
All the other witnesses for the prosecution testified flatly that they could not tell what brand was underneath the “lazy 18,” and all agreed that the defendant’s brand was haired over and an older brand than the “18.” The owner of the “18” brand (if there was any such brand in the neighborhood) was not called as a witness, and there was no evidence that there was no such brand thereabout.
After very full and careful consideration, we can see no way by which we can lawfully and consistently avoid reaffirming the conclusion reached at the original hearing, that the chain of evidence offered by the prosecution has failed in an important link, and does not prove that the defendant was the person who did the branding in question. In short, while the evidence is ample to create and support a grave suspicion against the defendant, it does not point to him with the unerring finger of moral certainty, which will alone sustain a conviction in a criminal case. There is one expression, however, in the original opinion which, upon more careful consideration, we think should be modified.
In Lawson on Presumptive Evidence, page 492, the rule is laid down as follows:
“The possession of real or personal property raises a presumption of title. ’ ’
And in the same work at page 210, it is said:
“Where a person is proved to be the owner of personal property with the present right of possession, the presumption is that he continues to be the owner until there is evidence that he has parted with that ownership.”
See, also, Magee v. Scott, 9 Cush. (Mass.), 148 (55 Am. Dec. 49), and Davis v. Insurance Co., 36 N. Y. Supp. 792 (15 Misc. Rep. 263).
If this were not the rule in relation to branded animals, it would be very disturbing to the title to such property in the range country. There, as a rule, no man knows his animals except by the brand, and if a thief or wrongdoer could neutralize the evidence of the previous brand by putting on a fresh one, it would seldom be possible for the true owner to prove his ownership. If a large owner was occasionally selling some of his cattle, and someone should place a brand upon some of his range stock, he would be compelled to prove the negative that he had not sold the particular animal, which would generally be impossible. If a cattle owner should die, any evilly disposed person might put a fresh brand on half his bunch, and it would be impossible to prove that the deceased owner
The first brand upon range cattle, is almost invariably placed upon them when they are calves at their mother’s side, and when the ownership can be easily ascertained. We think the better rule, and the one followed by cattlemen generally, is that there is a presumption in favor of the first brand. Of course, this is a disputable presumption and will yield readily to either direct or circumstantial evidence. As was said in the original opinion, the evidence was entirely sufficient to go to the jury as to the ownership of most of the cattle involved in this case.
We think the case should be sent back for a new trial in the event that the district attorney shall find himself able to strengthen his case. We will therefore proceed to notice the other claims of error which are likely to arise upon a new trial, and which are not sufficiently covered by what has already been said.
We think there was no reversible error in giving the instruction in relation to the testimony of defendant. It might have been just as well if the court had
“If you believe from the evidence and beyond a reasonable doubt, that the William Hanley Company is the owner of the brand ‘LY’ placed on the left hip of an animal, a record of which has been introduced in evidence, and that while it was so the owner of such brand, it placed the same on any of the animals mentioned in the indictment, then I charge you that it is sufficient evidence that the animal or animals so bearing said brand, is the property of said William Hanley Company, unless there is some other evidence to the contrary.”
—and gave a like charge as to the cattle alleged to have been the property of the Eastern Oregon Live Stock Company. We are of the opinion that this instruction went too far and invaded the province of the jury.
■The law in relation to brands to which we have already alluded, makes the brand of a stock owner prima fade evidence of his ownership, and such evidence is sufficient to go to the jury. But whether it is sufficient under all circumstances to satisfy the jury beyond a reasonable doubt, is a matter for it to decide. Nearly all of the animals in question here had two brands and as to some of them, at least, there was a controversy as to which was placed there first. Under these circumstances the court ought not to have told the jury that, if the Hanley Company “placed its brand on any of the animals, it is sufficient evidence” that the animals belonged to that company. The court
There was no error in refusing charge No. 6, which was entirely too broad.
The seventh instruction asked for by the defendant is elementary, and we see no reason why it should not have been given, although it may possibly have been sufficiently covered by the general charge.
The sixteenth instruction asked by the defendant was too broad and was properly refused.
Original Opinion Reaffirmed With Modification.