State v. Miller ( 1937 )

The defendant was convicted of horse stealing and appeals. The subject of the larceny was last seen by his owner in the summer of 1935 on the open range 15 miles south of Vaughn in Guadalupe county — 18 miles from the De Baca county line. In December, 1935, he was ranging on the ranch of Walter Overton, near Yeso, in De Baca county, 35 miles from his usual range. The defendant is charged with stealing the horse in De Baca county. Walter Overton, defendant's witness, testified as follows: "Well, sir, the first time I noticed that horse he was there at my place. * * *"

On cross-examination he testified:

"Q. Do you know how it came there? A. No sir.

"Q. It was ranging there? A. Yes sir.

"Q. You do know that John Riley took the horse up, rode it a few days, and fed it? A. Yes sir.

"Q. Over how long a period? A. I could not say; he was there most of the winter.

"Q. You knew at the time he was not John's horse? A. Yes sir.

"Q. He never made any claim to the horse? A. No sir.

"Q. And he took the horse away? A. Yes sir.

"Q. About when was that, would you say, In the Spring of this year? A. Yes sir.

"Recross-Examination "* * * Q. Had you seen the horse on your premises before John had ridden him? A. Yes, there were a few stray horses on my place; I could not say about this one, but there were a few stray horses on my place.

"Q. Then you saw John riding this horse and you knew it was a stray horse? A. Yes sir, he told me it was a stray horse."

The defendant, in a voluntary statement made to the sheriff, said they had accused him of stealing a slash J horse and they were calling it a slash U; that the slash J brand belonged to a relative of his in Arizona; and that the relative would appear at the trial. Cage Riley, father-in-law of the defendant, was placed on the stand by the State and he also maintained that the brand on the horse was a slash J. He testified that he had seen his son, John Riley, with the horse, and that the defendant had the horse and a dozen or more other horses at his place in July; that after stayinqg all night he departed with the horses in the direction of Portales. Shortly thereafter the defendant sold the horse near Portales in Roosevelt county, and when the scrivener, who was preparing the bill of sale for defendant's signature, asked him, "What brand?" he replied, "V bar," and that brand was placed in the bill of sale which the defendant executed and delivered with the horse.

The points relied upon for reversal are all based upon alleged error in the overruling of a motion for an instructed verdict, on the grounds of total failure of proof of venue, and that there was no substantial evidence that the defendant committed the larceny. Appellant made no objection to the court's instructions to the jury. There is no dispute as to the ownership of the horse nor that it was stolen, nor is there serious question as to the identity of the animal which the appellant had at the Cage Riley ranch in July with the subject of the larceny. Cage Riley described the brand as a slash J, as did the appellant in his conversation with the sheriff, but Riley had talked with the owner after the horse was recovered and testified that he knew the horse. The dispute was as to the brand the horse bore and not as to the identity of the animal.

The Attorney General suggests that the horse strayed from his range in Guadalupe county into De Baca county. It is a well-known fact that in that open range country cattle and horses will stray or drift many miles. James F. Hinkle, in "Early Days of a Cowboy on the Pecos," states: "We would send men out on the outside work and they would often be away for six months. They would work with the outside wagons and throw the cattle back towards the headquarters ranch. Often they would work as far south as Pecos town on the Pecos, and sometimes below that, and as far north as old Fort Sumner, a distance up and down the river of two hundred and fifty miles. * * * Some winters the cattle would drift south very much. I call to mind one roundup on both sides of the Pecos from Seven Rivers to the Berrendos, just north of Roswell, when there had been a great drift of cattle from as far north as the Canadian. Our outfit was on the west side of the river and was one of twenty-two wagons on that work. It took about thirty days to do that work for we would have large numbers of cattle in each roundup. The cattle were largely on out waters, that is, surface water holes and lakes, and the drive would have to go out each morning twenty miles or more to get around the cattle. At the clean up at Roswell there were fifty thousand cattle under herd to be taken back to the various ranches."

However, the method of the animal's escape or removal seems immaterial (3 C.J.S., Animals, 1200; 2 Am.Jur. 795), since, according to the defendant's witness, the horse was ranging for months in De Baca county before he was sold by the defendant on the 17th day of July, 1936. The horse was referred to by the witnesses as an estray on the Overton range. We have a statute defining an estray, 1929 Comp. St. § 4-1501, which provides: "Any bovine animal, horse, mule or ass, found running at large upon public or private lands, either fenced or unfenced, in the state of New Mexico, whose owner is unknown in the section where found, or which shall be fifty miles or more from the limits of its usual range or pasture, or that is branded with a brand which is not on record in the office of the cattle sanitary board of New Mexico, shall be known as an ``estray.'"

The slash U brand was duly recorded and the Overton ranch was not 50 miles from the usual range of the horse, hence he was not an estray under the provisions of our statute. Although if he were an estray in the physical possession of a taker up the property in the horse under such circumstances might be laid in the true owner. Quinn v. People, 123 Ill. 333, 15 N.E. 46; Palmer v. State, 70 Neb. 136, 97 N.W. 235; Moore v. State, 8 Tex. App. 496[8 Tex. Crim. 496][8 Tex. Crim. 496].

Appellant's attorney in an able brief strenuously argues that the testimony fails to prove the taking of the horse by the defendant in De Baca county beyond a reasonable doubt; and lays particular emphasis upon the use of the horse by John Riley, a brother-in-law of defendant and son of Cage Riley. John Riley rode the horse from time to time, but he made no claim of ownership and repeatedly stated that the horse was a stray. So far as the record shows, the horse was never out of De Baca county from the time he entered it in the year 1935 until in July, 1936, when the defendant had possession of him in Roosevelt county. This, in connection with the Cage Riley testimony, was sufficient evidence to justify the jury in finding that the horse was in De Baca county when taken.

The appellant's subsequent conduct and dealing with the horse may be looked to to show with what intent he first took possession of him. Shortly after leaving the Cage Riley ranch he sold the animal under a false brand and claimed in his statement to the sheriff that it bore another. The possibility of mistake is eliminated by the defendant's statements. This, with his unexplained possession of the stolen horse, is sufficient to make a prima facie case of guilt and establish the corpus delicti. State v. Lott, 40 N.M. 147, 56 P.2d 1029; State v. Ortega,36 N.M. 57, 7 P.2d 943; State v. Hussey, 188 Wash. 454,62 P.2d 1350; Note, 19 Ann. Cas. 527; Levering v. Commonwealth, 132 Ky. 666, 117 S.W. 253, 136 Am. St. Rep. 192, 19 Ann.Cas. 140.

For the reasons stated, the judgment should be affirmed, and it is so ordered.

SADLER, BRICE, and ZINN, JJ., concur.