I concur with the result and, except as herein stated, with the reasoning in the prevailing opinion.
The following facts were definitely shown: That the animal in question was an average range Hereford light red white bally steer and somewhat peaked or light in the hind quarters. It was born in April, 1945, from one of Winn's cows and within a few weeks thereafter was castrated, branded with Winn's brand on the right hip, Winn's ear tag placed in the under side of its right ear and sent with its mother into the mountains on the reservation. That the next October the range riders put it in the Cattle Association's corral separated from its mother where Winn and his boys identified it. At that time the ear tag was missing and the hair had grown over the brand and it was so indistinct that to make sure of their identification they roped it and parted the hair on the brand. It had developed small horns. They then took it to their lands northwest of Nephi and left it there with other cattle. This was around October 15, 1945, and in November of the same year they noticed that it was missing.
The Winn lands northwest of Nephi are close to Jarrett's land in that locality. To get to some of their lands a gate is opened into Jarrett's homestead and another gate opens into a lane about three-quarters of a mile long which ends *Page 348 with a gate into Winn's property. One side of this lane joins Jarrett's property, and Winn's property to which it leads joins Jarrett's for a distance of a quarter of a mile. A creek meanders from one property to the other where both parties water their stock. The fences are not cattle proof and if they were it would be possible for this animal to have gone from Winn's land into Jarrett's through the gates without being intentionally driven.
When the Winns noticed that this animal was missing they searched through all the neighboring herds, including Jarrett's, and made inquiry about it among the neighbors but were unable to find it. Neither Winn nor Jarrett make their home on the land in question, each having a home and a plot of ground in Nephi. Jarrett owns much land in this neighborhood consisting of several different tracts.
On June 24, 1946, the Winns found this animal near the dividing line fence between their land and Jarrett's. It had then been branded with Jarrett's brand on its left ribs, it had Jarrett's ear marks on both ears, his ear tag in the upper side of its left ear and it had been dehorned. From its appearance the Jarrett brand had been placed on the animal quite recently as compared with the Winn brand; some witnesses estimated that it had been placed there within two months. Jarrett's brand was much more distinct than Winn's brand, it being free from hair, At Winn's request Deputy Sheriff Jackson went out and looked at the animal and testified that he could observe when looking for it that there was a brand on its right hip when he was 50 steps away. The animal was then taken to Winn's home in Nephi where it was examined by the deputy sheriff with four others, all experienced livestock men, including a veterinarian, besides Mr. Winn and some of his boys.
About the middle of July the deputy sheriff called Jarrett and asked him to come to the sheriff's office where he was questioned by Jackson and the county attorney. Of this conversation Jackson testified: *Page 349
"* * * Mr. Jarrett asked why I had called him to my office, and I explained that I had a steer, and explained the description of the steer to him, * * * and then he said: `Oh, that, I am missing that steer. I branded that steer in 1945, and I am out two.'
"Then he went further into discussion about his steers being on his homestead; that he did not turn them on the reserve but the steers were on his homestead. I believe the boy had gathered some fourteen or such amount, and that he was out two steers.
"Then he went further into a discussion of a bullish steer and one that was not. Then I told Mr. Jarrett that he could not haveput that brand on in the spring of 1945. Then he said it must have been one of the purebreds that he had been holding for Major Henderson to judge before he marked those steers.
"Then he further discussed the handling of cows, the purebred cows, and a certain amount of calves that were born, how many bull calves which I related yesterday.
"There was some discussion about this steer again, after we had been down to the Winn place and looked at the steer. We went out in my car and drove in front of Mr. Jarrett's place, * * * and he said: `Well, if that is not the steer I branded in 1945, it must be one of the purebreds I held for Major Henderson to judge.'
"Then he stated further, that he had trouble identifying his cattle, that he was just not a cattleman, and he seemed to have trouble with his cattle, but he was sure that his boys would know which steer that was.
* * * * * "He said in that one statement * * * that he had waited to mark those steers till after Mr. Henderson came, and that was in the spring." (Presumably the spring of 1946.) (Italics added.)
On the previous day Jackson had testified that Jarrett had said that he thought the calf was from one of his purebred cows, that he had fourteen purebred cows and had gotten four bull calves from them. At first he said he had castrated two of those bull calves and later said he had kept all four bull calves intending to register them but later on the advice of Major Henderson from the Agricultural College he had castrated and marked them.
According to Winn's testimony after Jarrett had talked with the sheriff he went to Winn's home, had talked with him about this steer and told about the same stories as he had told the deputy sheriff and in addition thereto the following: *Page 350
"* * * I went out and sat down by him and we talked about the steer. He had talked to the sheriff about it, and came down a few nights before and seen it, and he could not figure out how it had happened. He said he knew he had never branded that steer, and could not figure out how it had happened, and went on with the conversation.
"* * * he and I are cousins.
"He agreed that we had had a few words, that he wanted to forget those, and start over, and he would be willing to give me the calf, * * * the winter's feed * * * and call it square, if I would do that; that he did not want it to get out; that he had been two or three years beating down the gossip that had been out once before, and he just got where he thought he could get out from that, and he did not want another one to come up."
"I did not agree to take the steer at his offer. He also said he was discouraged, and that he felt like putting himself away, * * *
"Then, in time he got back to the steer. He said he knew that I would not accuse him; that any one would know he would not brand that steer * * *.
"He said no one would know [how] it happened [that] that iron got on there, but any one would know he would not do that, and Iasked him why he had it, how he came to have it, if he had notdone it.
"Well, he rented his meadow, * * * He said at that time he had leased that to the Cattle Association for a stray pasture, and that the Association was anxious to use it, * * * that they got the first bunch of strays in the pasture before he got his out. It was possible that this calf had been put in by the association, in this pasture, and he had taken him with his, in mistake. The only way it could be it was a mistake, that is the only thing he could say at that time.
"I told him it was impossible, because I did not get the calf out of the cattle association corral till the 4th or 5th at the cattle gathering.
* * * * * "He went on to say that he had fed it all winter, on corn silage hay and grain, but he would be willing to give it to me, and call it off, if we would call the thing square and keep down the rumors. I did not agree to that."
Deputy Sheriff Jackson also testified that when he examined the animal in June,
"there was a hole on its right ear, close to where the slit camedown. * * * It was an oblong hole, like the steer had once been tagged and the tag had fell out." (All italics added.) *Page 351
The evidence is ample and probably conclusive that this animal belonged to Mr. Winn, that it was castrated, branded and an ear tag placed in its ear when it was but a few weeks old, and that Jarrett branded, ear marked, dehorned and placed his ear tag in its ear some time between October 15, 1945, and June 24, 1946, probably late in April when the calf was just passed a year old. The only doubtful question is: Did he know when he marked the calf that it was not his and that it had Winn's brand on it? Throughout this discussion of the evidence I assume that Jarrett made the statements to the sheriff and Winn substantially as they testified, and that the facts which he purported to relate, as distinguished from the inferences which he drew from those facts, are also substantially true. I make these assumptions because I find no evidence that any of his statements of facts were incorrect, and although Jackson admitted that he was somewhat confused by Jarrett's statements, I believe that both he and Mr. Winn were honest in their testimony and that such testimony was substantially correct.
I do not agree that the statements made by Jarrett to these men shows a consciousness of guilt. I fully recognize that when a person who is accused fabricates a story which, if true, clearly exonerates him but when his story is shown to be untrue, he tells a different one, he thereby shows a consciousness of guilt. In my opinion, the defendant did nothing like that here, but on the contrary the purported facts which he related to these witnesses were probably true, and although even if true, those facts do not exonerate him from guilt he made no attempt to fabricate a better story. This fact, in my opinion, is probably the most favorable evidence in the case of his innocence.
His statements to the sheriff and Mr. Winn do not show a consciousness of guilt. When he came before the sheriff and county attorney for questioning, and the sheriff told him that he had a steer which he described, the defendant answered that it must be one of his steers which he branded in 1945, and which he was now missing. Then when the sheriff told him that he could not have branded this steer *Page 352 in 1945 because his brand was too fresh he said that it must be one of his purebreds which he had not marked or castrated until the spring of 1946 after Major Henderson from the Agricultural College had advised him against keeping it as a bull for breeding purposes. It is true that he changed his theory of what animal this was and made a different statement of facts accounting for when his brand was placed on it but the reason for that is obvious. When he claimed that he branded it in 1945 he did not know that his brand had been put in it since that time, then when that fact was explained to him the only explanation he could make was that it must have been one of his purebreds which he did not brand or castrate until 1946. At that time he had not seen the animal, and was making his explanations more or less in the dark as to what animal they were talking about. But after the sheriff had taken him to see the animal he still seems to have no explanation of how his brand got on it after it had been branded by Winn, so he still insists that it must either be one which he branded in 1945 or one of his purebreds which he did not brand until later.
There is not a word in the evidence which even suggests that he did not brand a steer in 1945 which was lost at the time of this conversation, or that he did not have some purebreds which he did not brand or castrate until 1946. The weakness of his position is not that he was conscious that if he told the truth it would not establish his innocence and therefore fabricated different stories but apparently he gave the only truthful explanation there was in spite of the fact that those explanations do not establish his innocence. This suggests to me that maybe he was honest but knew of no truthful explanation which would exonerate him, and therefore he might have branded the animal thinking it was his.
Defendant's conversation with Mr. Winn was several days after he had talked with the deputy sheriff and the county attorney. At that time he was fully aware that he was facing criminal prosecution; he recognized the weakness of his claim that the animal must be his although he repeated *Page 353 the facts on which that claim was based; he then mentions that he and Winn are cousins, that they had had some words, and that defendant has spent years trying to live down some rumors, and ends by suggesting that under these circumstances no one could believe that he would brand the animal, and asks Winn to forget the whole thing and when Winn does not agree thereto, he suggests that he might commit suicide. Then Winn answers "If you did not brand this animal how did it come to be in your possession?" and defendant attempts to explain that it could have come into his possession innocently because he had rented some pasture to the Cattle Association and some of their cattle had been put into that pasture before he had taken his out and he might have driven this one out with his by mistake. But Winn answers that this could not be so because this animal did not come off the reservation until October 4th or after.
By this answer Winn seems to recognize the truthfulness of defendant's claim that he had rented a pasture to the Cattle Association, but points out a conclusive answer to the claim that defendant got the animal innocently in that manner. But this does not show guilty knowledge by telling fabricated stories, but rather shows that he stayed with the truth even though it did not exonerate him. On the question of how he came to have the animal in his possession, from the testimony of Mr. Winn it is doubtful that the dividing fence between their properties is cattle proof, and even if it were the animal might have accidentally gone through some of the gates; and according to the testimony of Mr. Winn's son, the dividing fence definitely was not cattle proof. But of course the fact that he might have gotten the animal in his possession innocently does not answer how an animal which was found in his possession with his brand on it could have been so branded by any one else.
In the face of the evidence that the animal was found in defendant's possession with his brand and ear markings, and that his brand had been placed there long after Winn's brand had been placed thereon, the evidence is sufficient to *Page 354 sustain a verdict unless there are other facts in the evidence which must, to all reasonable minds, establish a reasonable doubt of defendant's guilt. There are several factors in the evidence which tend to show that the defendant did not know that Winn's brand was on the animal when he branded and ear marked it.
First, the animal was found in defendant's pasture which adjoins Winn's property. If it had been further shown that defendant had personally placed the animal in that pasture then I think it would strongly suggest that he did not realize that it carried the Winn brand. It seems evident that no one would knowingly brand an animal with intention to steal and then place it where the true owner would be likely to discover that it carried the owner's brand. But there is no showing that defendant knew that the animal was placed in that pasture; it might have been placed there by mistake, or some one else who did not know the facts could have placed it there, without his knowledge.
Next, the evidence shows that when defendant ear marked the animal there was an oblong hole in its right ear about as long as the thickness of a pencil near the end of the slit which defendant placed therein. This hole was undoubtedly placed there by Winn when he put his ear tag therein which had later fallen out. Had defendant known that such hole was there when he ear marked the animal he would have in all probability cut the slit into this hole and thereby effaced a means of identification of the animal as belonging to Winn. So it seems to me reasonable to believe that when defendant ear marked the animal he did not discover that hole, which tends to show that he also had not discovered the Winn brand, for had he known of that brand he would have been looking for this hole.
There is also the evidence that Winn's brand was quite indistinct, and that his ear tag had fallen out before the animal came into the possession of defendant. Although the deputy sheriff testified that he, when he was looking for it, observed the brand when fifty steps away, the evidence also shows that the Winns roped it at the Cattle Association's *Page 355 corral to make sure that it had their brand, and there is other evidence that it was hard to see, including the testimony of one of the persons who examined it at Winn's place with the sheriff who said he tied it up in the shade and while there even though he was close to it he could not see Winn's brand except when the sun was shining on it right. Both in June and October the animal did not have its full winter coat of hair but in April when the defendant probably branded it, it would be covered with its full winter hair and the brand would be more indistinct.
On the other hand in his conversations with the officer and Winn, defendant never claimed that he branded the animal by mistake nor did he make any explanation why he branded any animal in the spring of 1946 which was more than a year old and had been castrated the previous year but had not been branded or marked at that time. The only animals which he claimed to have had which he branded in 1946 after they were a year old were the purebreds which he castrated at that time. Had there been other animals of his which he had previously castrated but not branded and marked, which he branded in 1946 he would no doubt have told the officer and Winn about them. It is possible that he did not know that he was not guilty of this offense if he branded the animal mistakenly thinking it was his own.
Besides, defendant told Winn that he had fed that animal on silage, hay and grain during the winter months. It seems improbable that he could have done that without discovering that it carried Winn's brand. From a careful study of all of the evidence, with much hesitation, I conclude that it is sufficient to sustain the verdict, that reasonable minds might conclude that there was no reasonable doubt of defendant's guilt. *Page 356