C. L. DAVIS, Appellant,
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. M. C. Burk and Mr. G. V. Hays, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. J. R. McDougall, Assistant Attorney General, and Mr. Lloyd J. Andrews, County Attorney, for the State.
[41 Ariz. 13] LOCKWOOD, J.
C. L. Davis, hereinafter called defendant, together with John C. Davis and Robert J. Sigmund, was informed against for the crime of grand larceny. A severance was granted and defendant was duly tried to and convicted by a jury and sentenced to serve from three to ten years in the state penitentiary, and from the verdict and judgment he has taken this appeal.
There are some six assignments of error, each of the first three containing several subdivisions, but we shall consider them in view of the legal questions raised thereby rather than in their numerical order.
The first question is whether or not the evidence sustains the verdict. In order that we pass intelligently on this question it is necessary that we state the facts, and, in so doing, we must, of course, view the evidence most strongly in favor of the state. Macias v. State, 36 Ariz. 140, 283 P. 711; Cole v. State, ante, p. 1, 15 P.2d 238, just decided.
Shortly before sundown on the evening of November 6, 1931, two cowboys, Dick Conley and Jess Crooks, were riding the range some six or seven miles to the southwest of Buckeye in Maricopa county. While so doing they noticed a Dodge truck standing on an old desert road. They saw some cattle tracks near the truck and followed them for about half a mile, when they saw a man, whom they afterwards discovered to be defendant, jump up and run around a little hill. They went to the place where the man was first seen and discovered the animal [41 Ariz. 14] which is the subject of the information lying dead on the ground with its head partly cut off. They then rode around the hill to where defendant had run, and, after a little conversation, he informed them that he had killed the cow in question by mistake, claiming that he thought he was shooting at a deer and had wounded the cow and then decided he had better go ahead and finish the job by killing it. They went back to the animal and the two cowboys discovered that it belonged to Arthur and John Beloat. One of the cowboys then went a few miles to the camp of Arthur Beloat, one of the owners of the cow, while the other remained concealed a short distance away from the truck. John C. Davis and Robert Sigmund came over to the truck and, after some conversation with defendant, the two former started away in the truck while defendant went back to the dead cow. Crooks then stopped Sigmund and John Davis, telling them they would have to wait until Conley returned, which he did shortly in company with Lum Pate. They went over to the dead cow and found that the two hind quarters had, in the interim, been severed from the rest of the body and carried some twenty or thirty yards away to the shade of a small tree. Defendant was not then at the body of the cow but shortly afterwards came up. After some conversation the two Davises and Sigmund were notified that they were under arrest and were taken to the camp of Beloat and afterwards to Buckeye. At the Beloat camp defendant offered to turn over to Beloat a tractor and truck belonging to him if the latter would not "turn him in," but the offer was refused. Within two days from the time of the arrest various witnesses skilled in trailing went out to the scene of the alleged crime and discovered two empty cartridges which fitted the rifle used by defendant, about 150 feet from where blood stains would indicate the cow had first been shot, and shoe [41 Ariz. 15] tracks at that point apparently made by defendant's shoes. The ground between the place where these last tracks were found and where the cow was shot was open and the view unobstructed. The cattle tracks at that point showed that the cow after being shot had run perhaps 300 feet before she dropped dead. Another set of cattle tracks starting in the same vicinity were found, with blood dripping along them, which ran some three or four miles away from the scene of the shooting and shoe tracks corresponding with the shoes worn by the defendant, John C. Davis, and Sigmund following the cattle tracks for a mile or more. Defendant on the stand admitted shooting, killing and skinning the cow and placing the two hind quarters where they were found, but claimed at this time that he thought he was shooting a white horse, stating that he and his companions had gone out on the desert to get a load of wood and incidentally to kill some wild horses which they understood were out in that vicinity.
There is no question in our minds that a jury would be justified from this evidence in finding that defendant, with his comrades, went out in the desert for the purpose of killing some cattle and carrying away the meat, and that defendant did kill the particular animal described in the information, partially cut it up and remove the hind quarters to the distance mentioned. Such being the case, the evidence does sustain the verdict if it sufficiently shows asportation.
And this brings us to the next legal question and the one most strenuously argued by counsel for defendant. Was the asportation shown by the evidence sufficient to sustain a conviction of grand rather than petit larceny? In order to constitute the crime of larceny, a felonious taking alone is not sufficient. It must be followed by an asportation or carrying away sufficient to supersede
the possession of the owner for [41 Ariz. 16] an appreciable time. Hence the crime is not complete until there has been an asportation. On the question of what is a sufficient carrying away, all the authorities hold that the felony lies in the very first act of removal of the property and therefore the least removing of the thing taken, with intent to steal it, is sufficient. It is contended by defendant, however, that the asportation must be of the whole of the article which it is alleged has been stolen, and not merely a part thereof, and that, since under the information in this case the grand larceny would require the stealing of an entire living cow and not a part of a dead one, he could be convicted at the most merely of larceny of the hind quarters, which would reduce the offense to petit larceny unless the hind quarters were of a value of more than $50. The precise point made does not seem to have been passed on in many jurisdictions. We are not, however, entirely without authority on the question. In the case of People v. Smith, 112 Cal. 333, 44 P. 663, the court states as follows:
". . . By our statute, 'larceny' is defined to be 'the felonious stealing, taking, carrying or driving away the personal property of another.' Pen. Code, § 484. The offense is divided into two degrees, -- grand larceny and petit larceny. It is grand larceny (1) when the property taken is of a value exceeding $50; (2) When the property is taken from the person of another; (3) when the property taken is a horse, mare, gelding, cow, steer, etc. In all other cases it is petit larceny. Pen. Code, §§ 486-488. To make the stealing of one of the animals named, however, grand larceny, the animal must be a live one, and not a dead carcass. It is true, if one ...