State v. Bouton , 26 Nev. 34 ( 1900 )

The facts sufficiently appear in the opinion. The defendant was convicted of the crime of grand larceny in the Fifth Judicial District Court, in and for Humboldt county, and was sentenced to the state prison for the term of seven years. He appeals from the judgment, and the order of the court denying his motion for a new trial. The respondent moves for a dismissal of the appeal on several grounds, one of which is that the certificate of the clerk, attached to what purports to be the record, is insufficient. The appellant asks leave to have the record properly certified. As the certificate can be amended, under Rule 7 of the supreme court, the motion to dismiss is denied. The other grounds of the motion to dismiss need not be noted here.

The papers that constitute the record in a criminal case, under Sections 4415, 4445, Comp. Laws, were attached together, and filed with the clerk of this court. We will regard them as though they were properly certified, as there is no intimation that they are not what they purport to be. We again call attention to "An act regulating appeals to the supreme court" (Comp. Laws, 3862), and to the several decisions of this court as to the proper authentication of the record on appeal. (Holmes v. MiningCo., 23 Nev. 23; Streeter v. Johnson,23 Nev. 194; Peers v. Reed, 23 Nev. 404; Becker v. Becker, 24 Nev, 476.) It is the duty of the appellant in all appeals to furnish this court with a record properly certified. When proper attention is paid to the above statute, motions to dismiss appeals on the ground of defective certificates, and motions for leave to withdraw the records for the purpose of having them properly certified, will not be of such frequent occurrence as heretofore, and delay and unnecessary expense with respect thereto will be avoided.

Indictment: The indictment charges that the defendant on the 1st day of July, A. D. 1899, or thereabout, at the county of Humboldt, State of Nevada, did feloniously steal, take, and drive away one steer, of the personal property of Howard McKissick and Jacob McKissick. There is evidence tending to show that said steer, together with fifty head of other neat-foot cattle, of the personal property of Howard McKissick and Jacob McKissick, were stolen in Lassen county, State of California, and driven to the "lava beds," in Humboldt county, State of Nevada; that said steer and said other cattle were plainly marked and branded with the lawful marks and brands of said Howard and Jacob McKissick in said Lassen county; that at said lava beds the defendant claimed to be the owner of all of said cattle, and claimed that he brought them from California; that the defendant, at said lava beds, marked and branded all of said cattle with marks and brands he claimed to be his own, and in such manner as to obliterate the earmarks and partially to obliterate the said brands of McKissick on said cattle; that at said lava beds the defendant, after his said marking and branding of said cattle, tried and offered to sell all of said cattle to F. A. Preston; that defendant subsequently drove the fifty-one head of said cattle belonging to said Howard and Jacob McKissick, including said steer, from said lava beds, a distance of fifty miles, to a point in said Humboldt county five miles east of Lovelock, and there sold all of said cattle, including said steer, to J. H. Theis, for $14 per head, and delivered all of them to said Theis at his ranch in said Humboldt county; that defendant at the time he so sold said cattle to Theis claimed that he had raised said cattle on Willow creek, in said Humboldt county; that upon the said delivery of said cattle to Theis the defendant received said sum of $14 per head, and soon after left the state.

There is a great deal of other evidence in the record tending to show the guilt of the defendant of the felonious stealing, taking, and driving away said steer in Humboldt county as charged in the indictment.

Instructions: The court, of its own motion, gave Instruction No. 6, relative to property recently stolen, and found in the possession of the person accused of the theft, and also Instruction No. 8, to the effect that if a person commit a larceny in one county or state, and carries the property stolen into another county or state, and there makes any removal or asportation of it with intent then and there to steal the same, he may be properly indicted and tried for the larceny of the property in the latter place. Counsel argue at great length that said instructions are erroneous. It would be sufficient to say that the record shows that no exception was taken to the giving of either of said instructions. It is only the instructions presented and given or refused that need not be excepted to or embodied in a bill of exceptions. (Comp. Laws, 4391; State v. Forsha,8 Nev. 137; State v. Burns, 8 Nev. 2.11;State v. Rover, 11 Nev. 343.)

But Instruction No. C is clearly correct, under the decision in State v. Clifford, 14 Nev. 72;State v. I. En, 10 Nev. 277;

And No. 8 is supported by State v.Newman, 9 Nev. 48, and other authorities.

The bill of exceptions shows that it does not contain all of the material testimony and evidence given in the case. The defendant offered certain instructions which were refused, and the refusal is assigned as error. Counsel claims that said instructions were based on certain evidence given in the case, but which is not embodied in the bill of exceptions. We cannot consider such instructions.

Other instructions were offered by defendant and refused, and we think they were properly refused. Some of them assumed the existence of a fact, while others stated erroneous propositions of law. The jury were fully and properly instructed by the court on all material matters involved in the case.

Finding no error in the record, the judgment and order appealed from are affirmed.