People v. Wilder

GAROUTTE, J.

—Defendant has been convicted of grand larceny in stealing a cow, and now appeals from the judgment and order denying his motion for a new trial. His counsel presents various grounds to support his appeal, but they largely partake of a technical character, and the court will only consider the more important ones.

It is first insisted that the evidence tending to show a commission of the crime of larceny by the defendant is not sufficient to support the verdict. One Schwikerath appears to have been the leading actor in the commission of the crime. The beast was driven from the field to the corral and there killed, the defendant participating in both of these acts. The contention is made that Schwikerath stole the animal at some time prior to the aforesaid driving and slaughtering. In other words, it is claimed that the animal was stolen before the defendant assisted in driving it to the corral prior to the slaughter, and therefore it could not be stolen again by him.

The evidence does not present a legal question of the nicety here suggested; for the testimony of Schwikerath is to the effect that he and defendant rode out into the field and drove the animal to the corral and there killed it. Under these circumstances, if one of these parties was guilty of larceny, the other was equally guilty. And the jury was justified in declaring, from defendant’s subsequent conduct in attempting to

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dispose of the carcass, that his original taking was larcenous. Indeed, taking the entire evidence into consideration, we hold that it is ample to support the verdict rendered against him.

Some point is made by reason of the fact that the court prefaced the giving of dertain instructions to the jury by the statement that they were asked to be given by the defendant. It is a proper practice to indicate by the record which of the parties asked the instructions given and refused. At the same time, it is not necessary to inform the jury that certain instructions read to them were requested by any particular party to the litigation. Jurors have nothing to do with that matter. Yet we find no objection in the record to the practice here followed, and indeed we are not cognizant of any substantial objection that could be made to that practice, for we are at a loss to see how defendant’s rights may have been in any way prejudiced by what was done.