State v. Stickel ( 1918 )

HARRIS, J.

1. Charles Gotcher and Bill Burch were “at the Cox place” on the evening of August 24th and about dusk they saw two men riding gray horses. When the witnesses first saw the horsemen .the latter were going east, but when a little over a quarter of a mile from the witnesses the horsemen “turned around the corner of the fence” and rode “south towards Lakeview.” Neither of the witnesses was able to identify the horsemen and it is therefore contended by the defendant that it was error to permit the witnesses to testify about seeing these two horsemen. The Cox place is near the Bishop ranch and hence not far from the clearing. When we remember the relative locations of the Mauzey, Cox and Keister ranches, and when we remind ourselves of the testimony given by the several witnesses concerning two gray horses it is at once apparent that the testimony given by Gotcher and Burch was competent. The facts in State v. McPherson, 70 Or. 371, 375 (141 Pac. 1018), and State v. Olds, 19 Or. 397, 439 (24 Pac. 394), relied upon by the defendant, are dissimilar to those we are now considering; and hence those precedents have no application here. The circumstance that two horsemen were seen riding two gray horses at the time and place when seen by the two witnesses was competent when' considered in connection with the other evidence concerning gray horses.

2. The defendant complains because the court refused to give requested instructions Nos. 1 and 4. Requested instruction No. 1 is as follows:

“I instruct you that larceny is the unlawful taking, carrying away or driving away the property of another with the intent to deprive the owner thereof. I further instruct you that in this case when the cattle in question were driven from the' field of the owner with the intent to deprive him thereof, the crime of larceny was completed.”

Requested instruction No. 4 reads thus:

“Before you can convict this defendant, you must believe beyond a reasonable doubt, that he is guilty of, or in complicity with, the original taking, and any subsequent connection after the taking would not be larceny in him whether in good or bad faith; and if you believe that this defendant came into possession of the cattle in question after the felonious taking, whether in good or bad faith, he is not guilty of larceny and you must acquit him. ’ ’

The charge which the trial judge gave to the jury completely covered the first requested instruction and it was therefore not error for the court to refuse to repeat what he had already told the jury.

3. After enumerating all the material allegations contained in the indictment, and explaining that it was necessary for the state to establish the truth of the material allegations beyond a reasonable doubt, and after saying that larceny is the felonious taking* of the personal property of another with the intent to deprive the owner thereof, the court gave the following instruction:

“Felonious intent means, without the color of right in taking, and to make the taking of property felonious, the taking must be such, and accompanied by such circumstances, as to show a felonious intent, that is, an intent to steal the property, and before a defendant can be convicted on a charge of larceny, it must b.e proven, beyond á reasonable doubt, that he was guilty of, or in complicity with, the original taking of the property charged to have been stolen.”

The matter contained in the requested instruction appears in the instruction given by the court; and an examination of the entire charge makes it obvious that the jury understood the theory of the state and the theory of the defendant and that the jury was advised and knew that the defendant could not be convicted if he did no more than merely to ride among the cattle in the clearing for the purpose of discovering whether any of them belonged to Mauzey.

4. H. Hopkins was called as a witness for the defendant and, after testifying that he resided at Clover Flat and that he was acquainted with Mauzey and the defendant, he stated that on August 24th he was running a header on the Jack Barker farm at Clover Flat and in the evening when returning from work to his home he came in sight of Mauzey and Stickel, each of whom was riding a gray horse, and that they were “driving a cow of some description.” Hopkins explained that Mauzey and Stickel were off about two hundred yards and that he saw “them for a little bit and then they went out of sight in the timber.” On cross-examination and in response to the question “You are very friendly with Louis Mauzey, are you not?” he answered, “On good terms”; and then over the objection of the defendant the following question was asked:

“Were you not a witness for him in the preliminary examination of the charge of larceny against him?”

The witness answered, “I was.”

Hopkins was not called as a witness until after Stickel had testified in his own behalf and after Mauzey had appeared as a witness for the defendant. Stickel had explained that he and Mauzey had driven a steer to the latter’s ranch on the evening of August 24th; Mauzey had corroborated Stickel by telling the jury that at some time after 2 p. m. on August 24th they saddled their horses “and came up over the top of the mountain, down to this side and got a steer that belonged to me, and took him home,” arriving home “about dark, between sundown and dark, but I think almost dark”; and it is therefore manifest that the testimony given by Hopkins about seeing Stickel and Mauzey “driving a cow of some description” was highly important to the defendant, because it tended to corroborate defendant’s claim that he was at Mauzey’s ranch on the night of August 24th, and it also tended to neutralize any damaging inferences that might be drawn from the testimony of Ootcher and Burch since, on account of the distance between the Cox and Mauzey ranches, Stickel and Mauzey could not have been the persons who were riding the gray horses at the Cox ranch if they were in truth driving an animal as narrated by Hopkins. The only material information given to the jury by Hopkins on his direct examination was his testimony about seeing’ Stickel and Mauzey on the evening’ of August 24th. If the purpose of the question asked Hopkins was to discredit Mauzey by showing that 'he had been arrested, then the testimony was incompetent; but it does not necessarily follow that the evidence was incompetent for all purposes: State v. Farnam, 82 Or. 211 (161 Pac. 417, Ann. Cas. 1918A, 318). The quoted question and answer, which were objected to by the defendant, were followed by two other questions and answers and then the cross-examination continued as follows:

“Q. Did you see Mr. Mauzey at the time Mr. Stickel was arrested, at the time of his preliminary examination?

“A. I saw him, I think I saw him at a distance.

“Q. Did you have any conversation with him?

“A. I don’t remember that I did.

“Q. Did you have any with him, between that time and the time of the first trial of this case?

“A. I don’t remember I had any conversation with him.

You didn’t inform him,, or this defendant, of this piece of information that yon saw them on this day, until when?

“A. I think after the trial.

“Q. After the first trial?

“A. Yes.

“Q. Were yon present during the first trial?

“A. No, sir.”

In other words, notwithstanding the fact that Hopkins was a witness for Mauzey at the latter’s preliminary examination, and in spite of the circumstance that he saw Mauzey at the time of Stickel’s preliminary examination, and although he lived at Clover Flat, nevertheless Hopkins did not inform Mauzey or Stickel of having seen them on the evening of August 24th until after the first trial of Stickel. The jury did not agree at the first trial of Stickel. The fact that Hopkins delayed in telling Mauzey or Stickel about having seen them on August 24th was a circumstance which the state had the right to submit to the jury to be considered by the jury in determining the weight and value of the testimony given by Hopkins, and hence it was competent to ask Hopkins whether he had been a witness for Mauzey at the latter’s preliminary examination.

The rulings of the trial judge throughout the trial were fair; Stickel was defended by diligent and able counsel; the verdict of the jury forecloses debate about his guilt; and it therefore follows that the judgment must be and it is affirmed. Affirmed.

McBride, C. J., and Benson and Bean, JJ., concur.