The opinion
This case was decided at a former term of this court, but the motion for a rehearing was not heard until recently. In his motion appellant contends that the court was in error in holding that the following grounds in the motion did not properly present complaints to the charge of the court. The three grounds upon which this is based are as follows:
"Because the court erred in the charge in not charging on the effect of the reasonable explanation made by defendant, and put in evidence by the State, and in not charging the jury that the State was bound by such explanation unless disproved. Because the court erred in not instructing a verdict of not guilty, the evidence showing an open taking under a claim of right, and it being improper to settle this dispute in a criminal case. Because the court erred in not charging the jury that if taking was under a claim of right by honest mistake, that subsequent appropriation would not be theft."
Now let us consider them. As to the first in the dissenting opinion herein filed, Judge Davidson says: "The principal point of attack on the charge in this respect is found in the fact the court failed to instruct the jury that the State, having put in evidence exculpatory statements of the defendant, is bound by the same, unless such statements and explanations are disproved. Under our authorities and in any clear sense of justice, this proposition is well taken," and appellant insists in his motion that the State is bound by the explanation offered by appellant. Later on we will present the law as charged by the court, but first we want to go to the evidence. Mr. Volmer testified:
"My name is Wm. Volmer; I know the defendant; I saw him on Saturday, the 20th day of November, 1909; I received information that there were two men, I don't remember whether he said one white man and one black man or not, killing a beef across the H. T.C. track, near old section 1, on the H. T.C.; I saddled my horse and rode over there and I found Mr. Roberts and Noonie Lewis, they were working at a killed beef; as I rode up, Mr. Roberts, in a joking manner — he had some beef loaded in the front part of his buggy, two quarters, a blanket underneath, and two quarters loaded above the blanket — `I am not going to let Mr. Volmer see that meat.' I said, `You are putting that blanket in a nice mess;' he said, `I have a wife to wash it,' and I said, `I did not believe it would be nice to put any more work on *Page 144
a woman's shoulders than necessary.' He had three quarters loaded in the front part of the buggy; I suggested to Mr. Roberts if I was in his place I would put the head underneath and put the other quarter on top, he said that he thought he would do so, and as he throwed the head in the buggy, he said, `See here, this animal is marked swallow fork in one ear and underslope in the other'; I said, `You have killed Mr. Robinson's heifer through mistake, and he answered, `Well, it was Roberts killing it.'"
Thus it is seen that when appellant's attention was first called to the fact that he had killed Robinson's yearling, he did not explain, and did not make exculpatory statements. Only said, "Well, it was Roberts killing it." When his possession was thus first challenged was the time for him to explain his connection with the killing of another man's yearling. Mr. Volmer got word to Mr. Robinson, and some distance from this point Mr. Robinson approached him when the following conversation is testified to by Mr. Robinson: "I stopped him and I said, `You have a beef, as I see there, butchered, I understand it is mine;' he says, `I guess not,' or something to that effect and I told him I knew it was; I saw the head, recognized the flesh marks on the head; the head was rolled up then; very easily recognized; I said, `Put it out so I can see the head,' and he said, `Oh, it is branded;' I said, `I guess not, it is not branded, it is mine;' he then pulled it out, he and I together pulled it out on the grass; I am not sure whether he did or I; anyway, it was pulled out and laid on the ground; there was my mark on it, swallow fork in the right and underslope in the left; he gets down and tries to show me a brand; before that I asked him where he got the yearling and he said he bought it; I asked him for a bill of sale and he said he had none, and I asked him from whom he got it, and he said McCullough, a man living in the Heights; I said, `What did you pay for it?' He said he was going to get half for going there and killing it on the prairie; he undertook to show me the brand, there was no sign of brand on it." Thus, it is seen when accosted the second time by the owner, he says the animal is branded and that he bought it. He was then asked for a bill of sale and said he had none, and then, asked what he paid for it, he gave another explanation and said, "He was going to get half for going out there and killing it." Is the falsity of this testimony shown by the evidence, and if not, should the State be bound by his failure to give any explanation when first accosted, or bound by the explanation that he bought it, or by the explanation that he was killing it on halves? But the record discloses the falsity of all the explanations.
Mr. McCullough, the man from whom he first said he bought the animal, and then said he was killing it on halves for, says: "I had no contract with defendant further than he was looking after my cattle in a general way; I paid him nothing for his services, it was a neighborly act." After testifying that he, defendant, had reported to him about some of his cattle, he said he asked him: "`Do you know it is *Page 145
mine, I know that the brand was very dim?' and he says, `Yes;' I said, `Could you see if the brand was on,' and he says, `I think I could;' I said, `she was branded very light; that Mr. Tete Roberts had placed his mark on her and notified me of the fact;' he says, `Your brand hardly shown any, Mac, and I put my mark on her;' Tete Roberts said that to me, he said to me that he did not know what my mark was, and I told him I never marked a cow. I then told the defendant, Roberts, to go and kill her if she is fat, but to be sure she is mine; I said, `You will know whether it is mine by the flesh marks,' and he said, `Oh, it is yours,' and I said, `That will be all right, you kill her and bring her home.' That is as far as any contract went, that is, of course, I expect to pay him for his services." Thus, the testimony of the man whose animal he said he thought it was, testified that he neither sold it to appellant nor had any contract with him to kill it on halves. Certainly then, the State ought not to be bound by such exculpatory statements, when they are both shown by the evidence to be absolutely untrue. Again, in his testimony, appellant says himself: "I did not say that I was going out there to kill this animal on halves and did not so testify on the former trial of this case; did not tell Robinson when he asked me about the yearling that I was killing it on halves. . . . McCullough was going to pay me for killing it; he told me he would pay me for it." Thus, it is seen that appellant, himself, denied making the exculpatory statements that were testified to by Mr. Robinson. Not only was the falsity of them shown by the testimony of McCullough, but appellant even denied the truth of such statements, and said he was not killing the animal on halves; had not bought it, but McCullough promised to pay him for killing it. McCullough says he had not promised to pay him anything; had no contract with him, but that he did expect to pay him. For this reason the authorities cited in appellant's brief and in the dissenting opinion, are not applicable when we take the evidence on the trial, as anyone can see by reading the cases cited, but the court correctly chargd the jury:
"You are instructed that if you believe from the evidence that the cattle described in the indictment was the property of McCullough, you will acquit the defendant, or if you have a reasonable doubt thereof, you will acquit him.
"If you believe from the evidence that the defendant, at the time of taking possession of the cattle described in the indictment, honestly believed that the said cattle was the property of McCullough, you will acquit him whether in fact the one head of cattle belonged to McCullough or not, or if you have a reasonable doubt upon this point, you will acquit defendant.
"The defendant is presumed to be innocent until his guilt is established by the evidence to your satisfaction, beyond a reasonable doubt, *Page 146
and unless the evidence in this case so satisfies you, then find him not guilty."
Inasmuch as defendant denied making the explanation to Robinson, and if he made it, the falsity of it was amply proven by McCullough and defendant's own testimony, no further or additional charge was necessary or proper.
And now on the sufficiency of the evidence, and the claim that the animal was taken in good faith, McCullough testified he asked if the animal he was talking about was branded; could he (defendant) see the brand? He answered, "I think I could." This was before she was killed. Thus, his attention was called to the fact that McCullough's animal was branded before he killed any animal. The animal killed had no brand on it, nor semblance of a brand on it, if the witnesses, both for the State and defendant are to be believed, and there was nothing on the animal to lead appellant "to think he could see a brand."
Again, appellant's testimony would indicate that Tete Roberts had placed a mark on an animal some four months before appellant killed this animal, consequently were fresh marks. About the marks on the animal killed, Wm. Volmer testified: "The ear marks on this animal were very old; they had been on there ever since it was a small calf; those ear marks had been on that animal about two years and a half." Robinson testified: "The ear marks on the hide were old; had been there a long time; examined the hide carefully; the yearling was about a month or two old when I put my marks on it."
No witness testifies the ear marks on the animal killed were fresh or had been placed thereon recently: Volmer, a cattle man, testifies that no cattle belonging to McCullough run on that range; that he saw the cattle weekly, that he had never seen any of McCullough's cattle running on that range; that he lived in that neighborhood.
McCullough said appellant was looking after his cattle in a general way; it was a neighborly act. If appellant was looking after the cattle, he must have known where they ranged, and no witness says McCullough's cattle ranged in the neighborhood where this animal was killed. If the appellant's witnesses are to have credence placed in them, McCullough did not seek to tell appellant where to find his animal; appellant brought the information, and when cautioned about the brand, said he thought he could see it, but before killing it, did not take the trouble to look for the brand. When it was killed there was no brand. When first his attention was called that he had killed another man's animal, he makes no explanation; when next asked about it, he says he bought it, and then when asked for a bill of sale, he says he was killing it on halves. All this, the testimony shows, is false, appellant saying himself it is not true. While it is true that appellant killed the animal in the day time, yet, when we take what the witnesses for the State say, it was not such an open taking. Mr. Tucker says: "When I first saw Mr. Roberts with this animal, it was about half a mile, maybe a little further, southwest of Eureka; that was where the animal was *Page 147
killed; that was about three hundred yards from the public road, maybe a little further." . . . He says that in loading the animal, defendant so placed the hide it was underneath the meat in the bottom of the buggy.
Mr. Volmer says that the animal was killed about three miles from Brunner, about three or four hundred feet from the public road. "I left him at the place where he killed the beef. I stayed there until he started home; he started through the prairie. He had about a mile to travel before he would get to the county road. I do not know whether he traveled the public road or went through the woods."
When we consider how the animal was placed in the vehicle, no one passing him could or would discover anything wrong, unless like Mr. Robinson, who had been informed that it was his animal that had been killed, and it had to be unloaded to get at the hide, etc., that the flesh marks could be seen, and demonstrated there was no brand on the animal. After reading and re-reading the case, we are more firmly convinced that the court, in his charge, submitted all the law applicable to the case, and that the evidence justifies and supports the verdict of the jury, especially so when we take into consideration the evidence given and the manner in which it is stated by the witnesses on direct and cross examination.
Motion for rehearing overruled.
Overruled.
ON REHEARING. December 6, 1911.