Territory v. Heywood

Opinion by

Hoyt, Associate Justice.

The plaintiff in error herein was indicted by the Grand Jury for the crime of horse stealing, and upon his plea of not guilty to said indictment, trial was had, and a verdict of guilty rendered ; whereupon the said defendant entered a motion in arrest of judgment and for a new trial, on the ground that the said indictment charged more than one offense, and that the jury were misdirected by the Court as to the law of the case ; and to reverse the action of the Court below in denying such motion, the case has been brought here for review upon the questions above stated.

The indictment charged the defendant with stealing one horse, the property of one Mary, whose true name is to the jury unknown, and one horse, the property of one-, wliose name is to the jury unknown, and in our opinion charged but one offense; for while it is true that the taking of two horses, the property of different persons, might constitute two separate offenses, yet if they were taken at the same time, the prosecutor could elect to treat it as one transaction, and charge it as- a single offense: besides, an objection of ’this kind in our opinion ■comes too late after verdict.

The Court instructed the jury, that if they found from the evidence that the name of the owner of one or both of the horses is now unknown, that they might then assume, in the absence of evidence to the contrary, that such name was likewise unknown to the Grand Jury finding the indictment, and thus find the allegation-of ownership as to the horse charged, to have been the property of one -, whose name was to the jury unknown, as having been sufficiently established by the evidence ; and the defendant conceives himself aggrieved by such instruction ; but we think that upon the question of ownership .such instruction was as favorable to the defendant as he could have asked, and that therefore the Court committed no error to his prejudice in thus instructing the jury.

These are the only questions which have been argued by ■counsel, or that it is necessary for us to decide ; and it follows from what has been said that the judgment and sentence were not erroneous, and should be affirmed, and it is so ordered.