State v. Brookhouse , 10 Wash. 87 ( 1894 )

The opinion of the court was delivered by

Stiles, J.

The prosecution of the appellant was based upon an information containing the following charge :

“The said John Brookhouse, at the county and state aforesaid, on, to-wit: the 28th day of June, 1893, did then and there feloniously take, steal, drive or lead away, twenty-five head of cattle, being then and there the property of E5. D. Nash, and being then and there of the value of seven hundred dollars.”

The theory of the state was that this was a charge of grand larceny under Penal Code, § 48, and the jury was so instructed by the court. We do not think the use of the disjunctive “or” rendered the pleading bad in this instance, because the association of the word “ feloniously” with the words “steal, take and' carry, lead or drive away” in the statute makes each of the phrases synonymous with the others. People v. Tomlinson, 35 Cal. 503.

But the information was defective because the property alleged to have been taken was described only as “cattle.” The term cattle in law includes all of the domestic animals mentioned in Penal Code, § 52, so that the information would have been sustained by proof of the taking of twenty-five horses as well as by showing that the “cattle” were that number of “steers.” Anderson, Law Diet., “cattle;” Bishop, Stat. Crimes, §§ 212, 440; 1 Bishop, Crim. Proc., § 568; United States v. Mattock, 2 Sawy. 148; Ohio, etc. R. R. Co. v. Brubaker, 47 Ill. 462; State v. Hambleton, 22 Mo. 452; State v. Lawn, 80 Mo. 241; State v. Enslow, 10 Iowa, 115.

With so plain a statute as Penal Code, § 52, in the criminal code, it is a proper subject for surprise that a prosecution for the stealing of property of this kind should not be pursued under its provisions.

The evidence for the state in this case consisted wholly of the testimony of a person who admitted that he himself, on the evening of the 27th of June, 1893, gathered up the steers, and the same night and the following morning drove them some forty miles down the Columbia river. He testified that some days before the 27th, appellant, himself and another man named Harris planned the theft of the steers, and that appellant and Harris were with him and assisted him in gathering and driving them away, and that they did not separate until the afternoon of the 28th, when they had returned together from the point where the cattle were left. Appellant attempted to prove by witnesses that he was not away from his home near Waterville on the 27th and 28th days of June, at any time of the day or night long enough to have taken an 80 mile ride during half of which he was employed in driving a herd of cattle. If the jury had believed the testomony offered they could not have believed the state’s witness wherein he persisted that appellant had been with him on the entire expedition, and finding him thus discredited, it is incredible that any part of his testimony inculpating- the appellant should have been accepted as true beyond a reasonable doubt.

Under this condition of the evidence it was manifest error for the court to tell the jury that if they found that appellant was not present at the time the cattle were driven away but was present at the time of starting the drive, under an agreement with the prosecuting witness that the cattle should be driven away and sold, and that he should have a share of the proceeds, they should find him guilty. No such state of facts as that pre-supposed in this charge had been testified to, unless the most material portion of the prosecuting witness’ statement were rejected as false and perjured. But by thus reducing the time of appellant’s presr ence to the mere starting of the drive, the court opened the way for the jury to admit the truth of all the testimony for the defense, and yet find the accused guilty ; for it was not pretended but that appellant might have been present during the few hours necessary to start the drive, so far as the knowledge of his witnesses went. These witnesses testified that they were with him at Waterville and in the vicinity on the evening of the 27th and again on the morning of the 28th, but they could not say where he was during the intervening night. Other witnesses claimed to have seen the cattle on the road down the Columbia, driven by but one person, who was riding a horse of the same description as one owned by the prosecuting witness. The nature of the evidence produced by the state to sustain its charge being of the character described, and furnished by a single confessed accomplice, it was unfair to the appellant to call upon him to account for himself in answer to a state of facts entirely different to those testified to against him.

We are of the opinion that the judgment should be reversed and the information set aside; but the appellant will not be discharged, but held to await the further action of the Superior court in his case, within the time allowed bylaw.

Dunbar, C. J., and Anders, J., concur.