APPEAL from a judgment of the Superior Court of the County of Apache. Dudley W. Windes, Judge. Judgment reversed and cause remanded for a new trial.
Mr. E. W. McFarland and Mr. Tom Fulbright, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. Renz L. Jennings, Assistant Attorney General, and Mr. Dodd L. Greer, County Attorney, for the State.
[41 Ariz. 2] LOCKWOOD, J.
Ed Cole, hereinafter called defendant, was informed against for the crime of grand larceny. He was tried to a jury which found him guilty, and he was duly sentenced to serve from three to five years in the Arizona prison. From this judgment he has appealed.
There are some nine assignments of error which we shall consider in such order as seems advisable. The first two in substance are that the evidence fails to support the verdict. It is necessary in passing on these that we review briefly the facts in the case, and, in so doing, we must, of course, consider the evidence viewed in its strongest light in favor of the verdict as returned by the jury. Macias v. State, 36 Ariz. 140, 283 P. 711. So considered it establishes the facts to be as follows:
One Clem Saffell was in 1927 the owner of a cow which was at that time branded in his brand, the [41 Ariz. 3] D-horn, and correspondingly ear-marked. He did not see it again until some time in the summer of 1930 when he was advised by Arthur Slaughter that a cow bearing his brand had been found at the ranch of the latter, some eighteen miles from the Saffell ranch. He went to Slaughter's in a few days and examined the cow in question, recognizing it to be the animal owned and last seen by him in 1927 from various personal peculiarities, apart from the brand. On examining the brands then on it, it appeared there was a D-horn brand on the left side which had been changed into the O V brand. This altered brand had been barred out and the holding brand on the cow was E L K, a brand which, at least from 1929 on, was owned by defendant individually. The cattle ranches of Saffell, Cole and Slaughter were in the same general vicinity, the former, where the cow had ranged in 1927, being in Apache county, and cattle owned by all of these parties were worked regularly together in the annual round-ups in accordance with the usual range customs. Defendant was arrested and charged with stealing the cow, and shortly thereafter he claimed to own the animal, stating that he had bought it from one W. C. Richardson. The latter, however, testified at the trial that, while he had sold a number of O V cattle to defendant, he never had sold any which had at any time borne the D-horn brand. This last brand was obviously the oldest of the brands on the animal, while the alterations into O V and the E L K brand were of a later date and apparently placed on it approximately the same time. It further appeared that the cattle inspector in that district about this time found upon the same general range a number of other cattle which had originally been in various brands belonging to different cattlemen of the vicinity, but such brands had been barred out and defendant's E L K brand placed thereon. When defendant was told of this fact, he claimed to [41 Ariz. 4] own at least part of these cattle. There is no evidence as to how he acquired them, and the owners of some of them testified positively that they had never sold the same to defendant or anyone else. This substantially is the evidence upon which the state relies for a conviction.
Defendant contends most strenuously that it is utterly insufficient to sustain the verdict, and in support thereof has cited to us the cases of State v. Moss, 95 Or. 616, 182 P. 149, 188 P. 702; State v. Morris, 70 Utah 570, 262 P. 107.
In the case first cited the evidence in substance was that the defendant was the owner of several hundred head of cattle, which, together with the one on which the indictment was based, and others belonging to different parties, were found together in a secluded glen in the forest reserve; that the original brand on the animal alleged to be stolen has been mutilated and the brand of defendant placed on it, and that an employee of defendant was seen somewhere near the cattle. The Supreme Court of Oregon held that this evidence was insufficient to sustain a conviction. The decision seems to be based on the reasoning found in the following quotation:
". . . but it must be remembered that, according to the undisputed evidence of the state's own witnesses, the defendant had no exclusive cattle privilege on the range in question, but, on the contrary, it was open to
every one's cattle and was used in common by all.
"If these animals had been found in defendant's immediate possession and control, as in his barn or sheds, or even, in some circumstances, in his field, a different question might arise, and there would, no doubt, be a presumption or inference that he was responsible for the disfigurement and rebranding. The case would then be analogous to the case offered on behalf of the state, as an illustration, where stolen property is found in ...