State v. Davis. force and fear, from the immediate presence of a party, owner of the chattels, and against his will, but it failed to charge expressly that the property was taken from the possession of the victim. The court entertaining the view that it, "at least inferentially appeared" from the indictment that the taking was from the possession of the party, held that the indictment sufficiently charged the crime of robbery to withstand an objection after verdict. There the indictment was merely defective, and the accused was tried for and convicted of the crime charged. Here the prisoner was tried for and convicted of a crime other than that charged in the information. The doctrine of that case does not militate against the ruling in this. The prosecution also assumes the position that, if the information does not charge the crime of robbery, but does charge that of grand larceny, this court has power to modify the judgment so as to reduce the term of imprisonment from thirteen years, as fixed by the lower court under the conviction for robbery, to ten years or less, under the statute providing for grand larceny, and, when so reduced, affirm the judgment, if the same be otherwise correct. In answer to this contention, it is sufficient to say that the circumstances disclosed would not warrant us in making such a disposition of this case. We do not deem it necessary to decide any of the other questions presented. The judgment must be reversed, and the cause remanded for further proceedings in accordance herewith. It is so ordered. BASKIN, C. J., and MCCARTY, J., concur. State v. Waldron. THE STATE OF UTAH, Respondent, v. JOHN PRYOR WALDRON, Appellant, and EZRA DAVIS, Defendant. No. 1538. (76 Pac. 1135.) (Decided May 13, 1904.) Appeal from the Seventh District Court, Carbon County.-Hon. Jacob Johnson, Judge. The appellant was convicted of robbery and appealed. REVERSED ON AUTHORITY OF STATE V. DAVIS, 28 UTAH 10. Messrs. Weber & Braffet for appellant. Hon. M. A. Breeden, Attorney-General, and Hon. W. R. White, Deputy Attorney-General, for the State. BARTCH, J.-The appellant was tried for and convicted of the crime of robbery. Upon being sentenced to imprisonment in the penitentiary for a term of thirteen years, he appealed to this court. He contends that the information under which he was prosecuted does not charge the crime of robbery, and that he was erroneously convicted of that offense. The information herein is the same as the one in the case of State v. Ezra Davis et al., 28 Utah 10, 76 Pac. 705. The decisive questions presented herein were all presented and decided in that case, and we refer for our opinion herein to that opinion. Upon the authority of that case, therefore, this judgment must be reversed, and the cause remanded, for further proceedings in accordance with that opinion. It is so ordered. BASKIN, C. J., and MCCARTY, J., concur. State v. Gordon. THE STATE OF UTAH, Respondent, v. W. E. GOR- No. 1546. (76 Pac. 882.) 1. Grand Larceny: Evidence: Sufficiency. Evidence held insufficient to establish grand larceny of horses. 2. Same: Instructions: Aiding and Abetting. 4. Same: Applicability to Evidence. It is erroneous to give instructions based on a state of facts which there is no evidence tending to prove, or which the undisputed evidence shows does not exist, although such instructions contain correct statements of the law. 3. Same: Finding: Evidence: Sufficiency. In a prosecution for larceny of horses, the fact that the animals were killed in defendant's stockyards, and the carcasses afterwards removed and deposited in an obscure corner of his field, a mile distant, was not sufficient to support a finding that defendant aided, abetted, or advised the commission of the crime, especially in view of positive and uncontradicted testimony of defendant and other witnesses which showed that he had nothing whatever to do with the killing of the horses. 5. Same: Withdrawal of Case from Jury. Where there is an absolute lack of evidence to sustain a verdict in a criminal case, it is error to submit the case at all to the jury. 6. Same: Discharge of Defendant by Supreme Court. Where the State has failed to make out a prima facie case against defendant, and it appears from the record that there is no probability that it will be able to produce other or different testimony from that produced at the first trial, the case should be dismissed, and defendant discharged from custody. 28 15 f30 324 State v. Gordon. (Decided May 13, 1904.) Appeal from the Seventh District Court, San Juan County.-Hon. Jacob Johnson, Judge. The defendant was convicted of grand larceny and appealed. REVERSED. Messrs. Warner, Houtz & Warner and Arthur Brown, Esq., for appellant. Hon. M. A. Breeden, Attorney-General, and Hon. W. R. White, Deputy Attorney-General, for the State. MCCARTY, J.-The information in this case, in substance, charges that the defendant on the fifth day of December, 1902, at San Juan county, did feloniously steal and drive away two mares, the property of one D. B. Perkins. The defendant was found guilty, ard sentenced to imprisonment in the State prison for a period of twenty months. From this judgment he appealed to this court. 1 There is no material conflict in the evidence in this case, and the facts proven are as follows: D. B. Perkins, the owner of the animals the defendant was convicted of stealing, on the second day of December, 1902, started with the two mares and four other horses from Monticello with the intention of taking the entire band to Dry Valley, which is about twenty miles north from Monticello. When a short distance north from the Gordon & Carlisle Ranch, the home of defendant, he left the entire band loose on the highway, and proceeded to Dry Valley without them. A short time afterwards, on the same day, defendant was seen driving these same horses and one other towards his (defendant's) corral on the ranch referred to. Peter Bailey, a witness for the State, testified on this point as follows: "That while going to Monticello, when nearing the Gordon & Carlisle Ranch, he saw a bunch of horses (and among them the two mares mentioned in the information); that as he approached the horses he saw Mr. Gordon (defendant) driving them; that it was broad daylight, about four o'clock in the afternoon; that Gordon was well acquainted with him; and that Gordon could see who he was, and made no attempt to avoid him, but drove the horses right along, and passed within a distance of about fifty yards." It further appears from the uncontradicted evidence that Gordon drove the horses into his corral on the occasion referred to for the purpose of catching a horse of his own that was in the band, and, after securing his own horse, turned the rest of the horses, including the mares in question, out of the corral, and set his dogs onto them, and ran them away from the corral and yards. On the fourth day of December, Gordon went to Monticello, and did not return to the ranch until the eighth, on which date he again left the ranch, and, in company of one James Matthews, started to Dry Valley with a herd of bucks, where they arrived December 10, 1902, and Gordon did not return to the ranch until about December 20. Matthews, however, returned in about a week after they left with the bucks, and remained at the ranch for one day, and then returned to the sheep herd. Peter Miller, who was in charge of the ranch during the absence of Gordon, testified that the day after Matthews came in from the sheep herd, and while he was at the ranch, he (Miller) was out hauling wood; that, when he came back with his load of wood, Matthews invited him out to the stockyards, where he saw a number of dead horses; that they had been killed the day while he (Miller) was gone for wood; "that Matthews stated to him that the horses jumped into the grain stacks and broke the fence down, and that he (Matthews) had got mad .and killed them;" that he (Miller) informed Matthews that the act was not ap 28 Utah-2 |