State v. Libby

Main, J.

On November 16, 1914, the defendant was charged by information with the crime of stealing from the open range and appropriating to his own use, “one head of neat cattle, to wit, one calf, the property of another, the true owner of said calf being unknown to said prosecuting attorney.” The trial resulted in a verdict of guilty. From the judgment entered upon the verdict and the sentence imposed, this appeal is prosecuted.

It is first claimed that the evidence is insufficient to sustain a conviction. Testifying in his own behalf, the defendant admitted the killing, butchering, and taking of the meat of the calf to his own home. The evidence also shows that a portion of the carcass had been buried for the purpose of avoiding any suspicion that his neighbors might have. The arresting officer testified that the defendant stated to him that if he had not appeared so soon, all the evidences at the place where the calf was killed would have been obliterated, and nothing would have been known about it; or words to that effect. The appellant, in explanation of his conduct, claimed that the calf had been shot by mistake, believing it to be a deer, and that he intended to seek out the owner and make compensation. Further discussion of the evidence is unnecessary, as it was abundantly sufficient to sustain the conviction. Croom v. State, 71 Ala. 14; Lundy v. State, 60 Ga. 143; Wilburn v. Territory, 10 N. M. 402, 62 Pac. 968; Coombes v. State, 17 Tex. App. 258.

It is suggested that the state failed to prove the venue as laid in the information. No witness was asked the direct question whether the crime was committed in Okanogan county. But the testimony shows clearly that it was there committed, and that there could have been no doubt in the minds of the jury as to the situs of the crime. This is sufficient proof of venue. State v. Kincaid, 69 Wash. 273, 124 Pac. 684; State v. Chin Sam, 76 Wash. 612, 136 Pac. 1146.

Finally, it is contended, and this seems to be the principal point urged, that there was a variance between the allegations of the information and the proof, in this: That the information alleged ownership in an unknown person; and it is claimed that the evidence shows individual ownership. The information was based upon Rem. & Bal. Code, § 2605, subdivision 4 (P. C. 135 § 703). According to this statute every person who shall steal, unlawfully obtain, or appropriate “from any range or pasture . . . one or more head of neat cattle . . . shall be guilty of grand larceny.” There is no substantial evidence as to the ownership of the calf which was killed and appropriated.

Upon cross-examination, the arresting officer expressed the opinion, in answer to one question, that the calf belonged to the Little-Wetzel Company. Upon redirect examination, however, he stated positively that he did not know the ownership of the calf. This evidence was obviously not sufficient to establish ownership.

Counsel for the appellant seek to support their argument as to a variance by a quotation from the opinion of the trial court when ruling upon the appellant’s motion for a directed verdict. In the quotation set out in the appellant’s brief appear these three sentences:

“I think that the court should hold as a matter of law that the ownership has been proven. The ownership has been virtually disclosed. We cannot presume that the state owned the property.”

What the court in this connection actually said was:

“I think that the court should not hold as a matter of law that the ownership has been proven. The ownership has not been assuredly disclosed. We cannot presume that the state knew who owned the property.”

The language as quoted in the appellant’s brief conveys the opposite meaning from that actually used by the court. The taking of such liberties with the record cannot be justified.

The judgment will be affirmed.

Morris, C. J., Holcomb, and Parker, JJ., concur.