People v. Hurley

Sharpstein, J.: The fact that the hides of the cattle alleged to have been stolen were found in the defendant’s barn, is not controverted. And we think that they were found there within a sufficiently recent period, after the loss of the cattle, to answer the requirements of the law in that respect.

But that is not all that is required to warrant the inference that the defendant stole the property. To justify that inference it must further appear that the possession was personal, • and that it involved a distinct and conscious assertion of possession by him. And even then such possession may be explained. (Whart. Cr. Ev., § 758.) Now the facts as they appear in evidence in this case are that the cattle alleged to have been stolen were first missed on the twenty-fourth of October, 1879, and their hides were found in the defendant’s barn on the twenty-seventh of November, 1879.

Within a few days after the cattle alleged to have been stolen were missed, and before the discovery of their hides, the defendant killed some cattle, which he, his wife, son, and daughter testify were his own; and none of them are contradicted or impeached. Nor do we discover anything suspicious in the conduct of the defendant as described by the witnesses who saw him at the time when he was killing these cattle, or disposing of their carcasses. And the cattle which he is proved to have killed were so unlike those alleged to have been stolen, as to preclude the idea of his having mistaken the latter for his own. He slaughtered them as he naturally would if killing his own; called in one neighbor to assist him; invited another to inspect his barn with him while some of the beef was suspended there; and disposed of it as he had been in the habit of disposing of beef before. The officer who arrested the defendant testifies that when the hides were brought out of the barn, the “ defendant said that it was a put-up job on him; that he knew nothing about the hides being in his barn.”

[76]The bam was never locked, and the neighbors went into it whenever they chose, which, one of the witness stated, was. almost daily. The hides, when discovered, were hanging upon a pole, visible to all who might enter the barn. The defendant and several members of his family, together with one or more other witnesses, testify that they entered the barn repeatedly during the period intervening the loss of the cattle alleged to have been stolen and the discovery of the hides, and that during that intervening period they saw no hides there, although they thought they should have seen them if there. There is no conflict in the evidence upon any material point. As we view it, there is none, except the bare fact of the discovery of the hides of the missing cattle in the defendant’s bam, which militates in any degree against him.