State v. Foley
State v. Foley
Opinion of the Court
delivered the opinion of the court.
Defendant was convicted of the crime of grand larceny, in the district court of Custer county. He appeals from the judgment and also from an order denying his motion for a new trial.
The following is a summary of the testimony: Frank Yan testified for the state: “Defendant was at my place on the 8th day of November, 1909; he asked me if I knew some of his cattle and I told him I knew of one steer about the mouth of Little "Whitney creek where it runs into the main Whitney creek; he started in that direction; at the time I saw his steer on Whitney creek, there were twenty or thirty of Kempton’s cattle in the bunch; I noticed four cows with unbranded calves, three of the calves were red and one was black; the black calf was following a black cow; they go about five or six miles around there where they used to run on Whitney creek; I had seen them three times before that on "Whitney creek about a week before Foley went up there; I have paid some attention to the habits of cattle; I have been raising them for ten years; a young steer will stray over more territory mostly than a cow with a calf; cows with calves ranging on water will run over a small territory; I saw these four cows running on Whitney creek the day before defendant was at my place; I saw them again on
Harrison testified: “Rhode and Yan went with me to the defendant’s ranch on November 13; we found four of Kemp-ton ’s cows three or four hundred yards below Foley’s pasture; took them up to the house and turned them into a corral with nine calves; four of the calves went to the cows and sucked them; the calves were not branded; there was one black calf went to the black cow and two freckled-faced calves and one deep red; the cows were outside of the "fence when we saw them; I saw the defendant and he said he had authority to gather these cows and calves and that he got them on the head of Cabin creek brakes; he said the Kemptons had given him authority; the Cabin creek brakes are five to eight miles east of Foley’s; the junction of Whitney and Little "Whitney creeks is between twelve and fifteen miles from defendant’s ranch; I would judge it to be between twenty-two and twenty-five miles from Cabin creek to where Little "Whitney flows into Whitney creek.”
Fisher testified: “Defendant lives about two and a half miles from me; I have never seen any of the node brand of Kempton’s cattle in the vicinity where I and defendant live for the last year or two.”
Rhode testified: “On November 12 or 13, Harrison, Yan and I went to defendant’s ranch; we found some calves in a corral and saw some cows in the pasture and some that were out,
Johnson testified that in November or along the latter part of October he saw three unbranded calves of Kempton’s at the forks of Big "Whitney creek and Little Whitney creek; one of the mothers was a black muley cow. Aronson gave similar testimony.
The defendant Foley testified that in September, 1909, he met Asa Kempton when the Kempton outfit was shipping cattle and told him “if he saw any of my cattle down there, to hold them for me and I would hold his if I found them on my range, and he said all right. I was to hold his cattle on Pine creek and he mine on Whitney and Fallon creeks”-; after this conversation with Van he went to Whitney creek and brought one steer home; the next day he rode to the Cabin creek brakes and found four of Kempton’s cattle with unbranded calves and took them home with him to hold them for Kempton, believing that he had authority from Asa Kempton; he took them to his"ranch and put them in the pasture but they got out twice, so he put the calves in the corral; the next morning he “wrote Kempton a letter notifying him that I had some of his eattle but never had time to mail it, it stormed that day and I didn’t go to town, and I thought I would wait until the next day, but about 6 or 7 o’clock in the morning Harrison came”; he told Harrison that the cattle belonged to Kempton and that he attempted to notify Kempton; Deckert, his brother in law, Pat Foley, his brother, and Pat’s wife and Mr. Folk were present when the letter was written. A letter was introduced in evidence.
Pat Foley testified that defendant said the cows and calves belonged to Kempton; he saw the cows in the pasture ‘ ‘ only the day he put them back in again”; witness saw the letter to Kemp-ton. Mrs. Pat Foley’s testimony was in substance the same as that of her husband.
Bruhns testified that he heard the conversation between defendant and Asa Kempton substantially as narrated by the defendant.
Deckert testified that defendant said the calves in the corral belonged to Kempton; he also testified to seeing defendant write the letter; witness read the letter.
Asa Kempton denied that he ever had any such conversation or agreement with defendant as that testified to by him and Bruhns; he said he was not acquainted with defendant and did not know his cattle brand; neither did he know where his cattle ranged.
1. The information upon which the defendant was arraigned charged that he did “felobiously steal,” etc. At the beginning of the trial, after the jury had been sworn, the state asked leave to amend by inserting the letter “n” in place of the letter “b.”
2. Complaint is made that the state was permitted, over objection, to inquire of witnesses as to the habits, conduct and actions of cattle under certain conditions. We find no error in
3. It is contended that the court erred in permitting the witness Fisher to answer whether he had seen any cattle of the.
4. The witness J. B. Kempton was allowed to testify, over objection, that when sucking calves are taken from their mothers and confined in a corral, the mothers will stay in the vicinity
5. Error is assigned upon the refusal of the court to give three certain, instructions, to the effect (1) that it devolved upon the state to prove beyond a reasonable doubt that defendant took, stole and carried away the calves described in the information, with intent to convert them permanently to his own use, and (2)
6. After reading the evidence, we have no doubt of its sufficiency to justify the verdict.
The judgment and order are affirmed.
'Affirmed.
Reference
- Full Case Name
- STATE v. FOLEY
- Status
- Published