State v. Reese
140 P. 126
Utah
1914
Check Treatment
FRICK, J.

J. C. Reese, the defendant, was convicted of the crime of grand larceny, and appeals.

The evidence relating to the larceny, briefly stated, strongly tends to establish the following facts:

At the time of the alleged larceny the appellant was in the employ of the Denver & Rio Grande Railway Company, as a conductor on one of its freight trains. His run was be*258tween Helper and Salt Lake City, Utah. He was conductor of the train and in charge of the car between Helper and Midvale, from which it is alleged the stolen property was taken. At Midvale the train and car aforesaid passed into the charge of another conductor, but the appellant remained in his own caboose. The merchandise alleged to have been stolen consisted of 100 children’s dresses which came into the possession of the Denver & Eio Grande Railway Company as follows: The original bill of lading was introduced in evidence, and from it it appears that the Waseca Manufacturing Company of Philadelphia, Pa., on the 1st day of December, 1912, packed and shipped to Hazlet & Tough at Petaluma, Cal., via “Union C. B. & Q., D. & R. G. and Western Pacific” railroads, as common carriers, “one crate of girls’ dresses.” It further appeared that those dresses were packed and shipped in a large wooden box 2x2x4 feet in size over the “P. R. R.,” which initials were shown to represent the Pennsylvania Railroad, which operated a line between Philadelphia and Chicago; that at the latter place the box aforesaid was transferred from the P. R- R. to a car of the “L. S. & M. S. R. R.,” which car was No. 46759. It was shown that the initials L. S. & M. S. R. R. stood for Lake Shore & Michigan Southern Railroad, and that the car aforesaid was taken from Chicago by the “C. B. & Q. Ry.,” which was shown to be the Chicago, Burlington & Quincy Railway, and was by that company transferred at Denver, Colorado, to the “D. & R. G. R. R.,” which was shown to be the Denver & Rio Grande Railroad Company, and that that company took the car at Denver and transported it over its road westward to Salt Lake City. The car in question passed into the charge of appellant at Helper, Utah, and he there received the bill of lading before referred to. When appellant’s train arrived at Midvale station in Salt Lake County, some distance south of Salt Lake City, he could not proceed any farther with his train on account of the sixteen-hour service law, and his train was there turned over to Conductor Bruner, who attached appellant’s train to his and brought them both into Salt Lake City as *259one train. Appellant’s train was placed in front of Bru-ner’s train and caboose and was located about the middle of tbe'whole train. When the train had reached a point at or near Tenth South Street, Salt Bake City, Mr. Bruner, in looking out of his caboose, saw a large bundle thrown from about the middle of the train. This bundle, it was shown, contained the 100 girls’ dresses shipped from Philadelphia to Hazlet & Tough as aforesaid, and which had, by some person, been removed from the crate, or box in which they had been packed and shipped as aforesaid. Some one had gained access to car No. 46759 by shifting the car door, which could be 'done by reason of the absence of a bolt or nut without breaking the car seal, which was found intact. When the • train had arrived at Murray station, which is between Mid-vale and Salt Lake City, Conductor Bruner had occasion to go into appellant’s caboose for a chain, and in doing so he saw a bundle which appeared similar to the one thrown off the train, but which he thought was appellant’s bedding and blankets. Appellant got off the train at Seventh South Street, Salt Lake City, and walked north to Third. South Street, where he hailed an expressman whom he employed to take him to Tenth South Street to get a bundle, or some bundles, for him. The expressman asked -appellant some questions, which, it seems, he was not willing- to answer, and the colloquy between them almost resulted in losing the expressman the job, which, it seems, he was unwilling to lose. The appellant got into the express wagon and they drove down to Tenth South Street, where appellant requested the express-man to stop. Appellant got out of the wagon and went some distance farther south on the railroad right of way, and after arriving at the point where the bundles were lying, and after looking in all directions, he beckoned the expressman to drive down to where the bundles were; and after the ex-pressman had arrived there the appellant proceeded to load the bundles into the express wagon, and while in the act of doing so was arrested by a special agent of the railroad company who was concealed in the vicinity watching the actions of appellant. The special agent compelled the appellant to *260get into tbe express wagon, and tbe appellant, tbe special agent, and a brakeman, together with tbe bundles, were taken to tbe station of tbe railroad company by tbe express-man in bis wagon. On tbe way appellant offered tbe special agent various sums of money if tbe latter would “keep quiet” about tbe matter. In making tbis offer appellant wrote on a blank leaf of bis train book, wbicb be beld up so tbat tbe special agent could and should see what be bad written and in bolding up tbe book the special agent, by tbe exercise of some force, tore tbe leaf on which tbe offer was written from tbe book and also took tbe book from appellant, and tbe leaf and tbe book from wbicb tbe leaf was- torn were produced in evidence against appellant at tbe trial. It was shown tbat tbe wholesale price of tbe dresses was a little in excess of $100 and tbat tbe retail price thereof was not quite $200. It was also shown tbat tbe official who alone bad tbe power to give consent to remove tbe dresses, from tbe car bad not given such consent. Tbe box in wbicb tbe dresses bad been packed, and tbe dresses themselves, were also clearly identified by tbe young man who packed and shipped them at Philadelphia, and who bad prepared tbe bill of lading, wbicb be also identified. There were also shown other facts of a circumstantial nature wbicb tended more or less strongly to connect tbe appellant with tbe larceny. We do not deem it necessary to set them forth here. Nor do we deem it essential to set forth tbe evidence offered by appellant in bis own behalf, since tbe jury were not required to believe it, and, in view of tbe verdict returned, could not have believed bis statements.

1 Tbe first error assigned is tbat tbe state failed to prove tbat tbe title to tbe stolen property was in tbe Denver & Rio Grande Railroad Company. Tbe proof is ample to show tbat tbe railroad company was in possession of tbe goods as bailee in its capacity of a common carrier, and tbat it was, at tbe time of tbe larceny, in tbe act of transporting tbe same. Tbe fact tbat tbe railroad company bad possession of tbe stolen goods and was in tbe act of transporting them also answers tbe contention tbat tbe proof is not sufficient to show tbat tbe same were shipped from Pbila-*261delphia or that they were transferred at Chicago, as claimed by the state.

2 It is next contended that the state failed to prove the corporate capacity of the Denver & Rio -Grande Railroad Company. The state undertook to prove the corporate capacity of the railroad company pursuant to Comp. Laws 1907, section 4859, which, among other things, provides -that in criminal cases corporate capacity “may be proved by general reputation.” That is, the corporate existence of the railroad company in this instance could be shown, by proof that the general reputation of the railroad company was that it was a corporation and transacted business as such. The same question was before this court in State v. Brown, 33 Utah, 109, 93 Pac. 52, where it was held that the .proof was insufficient. The same case, however, was again before this court. (36 Utah, 46, 102 Pac. 641, 24 L. R. A. (N. S.) 545.) In the latter case the proof was held sufficient. While in that case the evidence is not set forth in the opinion, yet we have examined the printed abstract filed in that case in which the evidence is set forth, and the evidence in this case is substantially the same as it was in that case. In view that we held the evidence sufficient in that case, that case must control the present one upon that question. The contention therefore cannot be sustained.

3 It is next contended that the leaf torn from appellant’s train book, and the book itself, were improperly admitted in evidence against appellant because they were taken from him by the use of force by the special agent who arrested him. When the book and leaf were taken from appellant he was under arrest. Appellant testified in his own behalf, but he did not deny the fact of offering the special agent money to keep quiet; nor. did he in any way deny or explain his own conduct in that regard. He did not claim that excessive, or any force was.used. We see no reason why it was not proper to show all that occurred or what was said and done by the appellant at the time of his arrest and immediately thereafter. While we do not wish to be understood as unconditionally approving the use of force in *262taking property from one who is accused of an offense, yet we cannot interfere with convictions which" are otherwise regular, proper, and legal for matters of this character.

4 It is next contended that the necessary wa,nt of consent by the railroad was not sufficiently shown. We think it was. Want of consent when property is taken from a corporation certainly, like any other essential fact, may be shown by circumstantial evidence. Moreover, where property is taken secretly and without the owner’s knowledge, the proof of nonconsent may be inferred from other facts, since it cannot be assumed under such circumstances that the owner consented. (18 A. & E. Ency. Law (2d Ed.) 469.)

The contention that under the evidence the court should have directed the jury to return a verdict of not guilty is clearly untenable. To hold that under the facts and circumstances of this case the jury were not justified in returning a verdict of guilty would amount to offering a premium to the employees of common carriers to steal the goods of shippers while in transit. In our judgment the jury were not only authorized to return a verdict of guilty in this case in view of the whole evidence, but we cannot see how they could have done otherwise under their oaths.

The judgment is affirmed.

McCARTY, C. J., and STRAUP. J., concur.