THE STATE OF NEVADA, Respondent, v. JAMES THOMPSON and W. M. McCABE, Appellants
State v. Thompson
Talbot, J.: I concur.
THE STATE OF NEVADA, Respondent, v. JAMES THOMPSON and W. M. McCABE, Appellants.
[No. 1782]
THE STATE OF NEVADA, Respondent, v. JAMES THOMPSON and W. M. McCABE, Appellants.
1. Criminal Law—"Attempt to Commit Crime.”
An attempt to commit a crime contains three elements—the intent, the performance of some act toward its commission, and failure of consummation.
2. Criminal Law—Intent—Evidence.
Where a specific intent is a material element of an offense, it need not be proved by positive or direct evidence, but may be inferred from the conduct of the parties and other facts and circumstances disclosed by the evidence.
3. Larceny—Attempt to Steal—Evidence.
Evidence held to warrant a conviction of attempting to commit grand larceny in felonionsly attempting to sever gold-bearing ore from the realty of a mining claim.
i. Criminal Law—Appeal—Evidence.
A conviction will not be disturbed on appeal where the evidence is conflicting and there is substantial evidence to support it.
Norcross, C. J., dissenting.
Appeal from the District Court of the First Judicial District of the State of Nevada, Esmeralda County; F. P. Pangan, Judge.
James Thompson and another were convicted of an attempt to commit grand larceny, and they appeal.
Affirmed.
The facts sufficiently appear in the opinion.
Frank J. Hangs, for Appellants:
I. An attempt to commit a crime must -include some overt act or the intent must be proved beyond a reasonable doubt. This court has .already passed upon what is necessary in such a case. In the case of State, of Nevada v. Lung, 21 Nev. 209, this court entered into a full discussion of what constituted an attempt and cited a number of authorities to support its view of the matter. In addition to the authorities there cited the court’s attention is called to the following: State v. Angelo, 18 Nev. 425; State v. Taylor, 84 Pac. 82; Peoples. Fleming, 29 Pac. 647; People v. Mize, 22 Pac. 80; People v. Sites, 75 Cal. 570; People v. Mvirray, 14 Cal. 159; Hicks v. Comm., 19 Am. St. Rep. 891; Stabler v. Comm., 4 Am. Rep. 653; State v. Doran, 105 Am. St. Rep. 278; People v. Young, 80 Am. St. Rep. 763; State v. Mitchell, 93 Am. St. Rep. 582: State v. Gardner, 43 Am. St. Rep. 741; State v. Lee Kong, 29 Am. St. Rep. 165; People v. Jaffa, 9 L. R. A. 263; 1 Bishop, Crim. Law, secs. 731-736; 1 Wharton, Crim. Law, sec. 180. That the intent must be clearly proven admits of no doubt in this state. (State v. Clifford, 14 Nev. 72; State v. Zichfeld, 23 Nev. 315; State v. Miller, 88 Am. St. Rep. 600, note on "Intent”; Carter v. State, 28 Am. St. Rep. 949.)
II. The court permitted improper and unfair cross-examination of the defendants. When a defendant takes the stand he is subject to the same kind of a cross-examination as any other witness. (State v. Cohn, 9 Nev. 179; State v. Huff, 11 Nev. 17; Buckley v. Buckley, 12 Nev. 424,14 Nev. 262; People v. Miller, 33 Cal. 99; State v. Judiesch, 96 Iowa, 249; Gale v. People, 26 Mich. 157; State v. Larch, 12 Or. 99; People v. O’Brien, 66 Cal. 602.)
R. C. Stoddard, Attorney-General, for Respondent:
I. When a person is engaged in doing an unlawful thing the intent to commit a crime may be drawn from his unlawful acts, but if he is- engaged in doing something absolutely lawful, then a specific intent must be shown to have existed, in order to establish the crime. (State v. McGinnis, 6 Nev. 109; U. S. v. Darton, 6 McLean, 46; U. S.v. Baldridge, 11 Fed. 552; Hoover v. State, 59 Ala. 42; Mullen v. State, 82 Ala. 42; State v. Jones, 70 Iowa, 505; Comm. v. Bull, 76 Ky. 656; State v. Goodenow, 65 Me. 30; State v. Kortgaard, 62 Minn. 17; State v. Hall, 85 Mo. 669; People v. Herick, 13 Wend. 87; State v. Presnell, 34 N. C. 103; State v. Smith, 93 N. C. 516.)
By the Court,
Sweeney, J.:
Defendants were jointly indicted, tried and convicted for the crime of attempt to commit grand larceny. From the judgments and orders denying their motion for new trial, each has appealed.
The indictment is in two counts. Conviction was had upon the second count, which charges that defendants "did wilfully, unlawfully and feloniously attempt to sever from the realty of tlie Bed King mining claim, the property of the Florence-Goldfield Mining Company, a corporation, the Goldfield Syndicate Mining Company, a corporation, Lewis H. Rogers, et al., gold-bearing ore, then and there being of the value of $100, and to convert the same into personal property, with the intent to feloniously steal, take and carry away the same, and in pursuance of said attempt, they and each of them did then and there enter the underground workings on said Red King mining claim, but said defendants, and each of them, failed in the perpetration of the said grand larceny"
Counsel for appellant relies mainly upon the contention that the evidence does not support the verdict. There is little, if any, substantial conflict in the testimony. The defense did not attempt to deny or dispute any of the evidence offered by the state, and the state offered no evidence in rebuttal of the testimony offered by the defendants.
Lewis H. Rogers, a witness for the state, testified in reference to the underground workings of the Red King mining claim, the property of the Florence-Goldfield Mining Company, and upon which the Goldfield Syndicate Mining Company, the witness Rogers and others had been operating a lease. He testified that, at the time of the alleged offense, on the 300-foot level of said claim and lease, in a winze about thirty-five feet in depth, there was a streak of ore about six inches wide that Avould run about two thousand dollars to the ton; that in a stope about sixty feet long upon the 400-foot level, averaging from three to five feet wide of ore that would run $110 to the ton, there was a streak of very rich ore about two inches wide, and in places five or six inches wide, that would run about $10 a pound; that the ore in these high-grade streaks was very hard, contained some bismuth, was quite black, some of it as black as coal.
Mr. C. O. Lovell testified that he was a deputy sheriff; that on the night of the alleged offense he was on the 300-foot level of the Rogers Syndicate lease, in a drift beyond the shait, and that one Thomas Ramsey was with him; that they were behind a bulkhead at the end of the drift near the shaft, placed there for the purpose of preventing the débris falling into the shaft; that about 9 o'clock in the evening, or shortly before, he saw the defendants coming down the -shaft from the Rosebud shaft; that he saw them first when they came to a short crosscut that was probably thirty feet from the shaft; that they held the candle up and peered down this crosscut, then they came to the station, and Mr. Thompson climbed over the bulkhead where the witness was, and Mr. McCabe remained at the station of the shaft; that when the defendant Thompson climbed over the bulkhead, witness Lovell told him to throw up his hands, which he did, after which a .38 double-action Colt gun was taken from him; that immediately upon the witness telling Thompson to throw up his hands, the defendant McCabe went back in the direction from whence he came; thát the defendant Thompson was taken to the station of the shaft where a prospector's pick and two large canvas ore sacks were taken from him; that he was then taken to the surface and his candlestick and candle taken from him; that he did not at the time xxor subsequently make any statement to the witness concernixxg his presexxce in the mine; that he was one of a party that took the def exidant Thompsoxx to jail about 10 o'clock that night.
E. W. Gardner, a witness for the state, testified that he was a deputy constable; that he saw the defendaxit Thompson when he was brought up to the Rogers Syndicate shaft by the witness C.'O. Lovell; that thereafter he went to the Rosebud shaft, axxd about twenty minutes or half an hour later than the defendant Thompson was brought to the surface, he saw the defendaxit McCabe come out of the shaft of the Rosebud lease on the O. K. Fi'action claim, this shaft being about three hundred feet from the Rogers Syndicate shaft. Asked to desciibe the circumstances of the defendant McCabe coming from the shaft, his arrest, etc., the witness stated: "Well, he approached the top, got within a few feet or a couple of feet of the top; why he halted there axid called for 'Charley' several times. He got no answer axxd stayed there in the shaft. He raided up the trap door and jumped out, and we placed him under arrest, told him to throw up his hands. He threw them up and Officer Colwell searched him and then he asked him who 'Charley' was, and he said, 'Well, he intended that name, in speaking, he intended that name for him.' He says, 'I intended to call you Charley.' Colwell said, 'How did you know my name?' He said, 'I guessed it.' He didn't make any statement concerning his presence there in this exit from the shaft at that time, nor subsequently to me." The witness further testified he was present when defendant McCabe was searched; that all he saw taken from him was a candlestick containing half or three-quarters of a candle.
The witness Burns M. Colwell testified, upon the part of the state, that he was a deputy sheriff; that he saw the defendant Thompson when he came out of the Rogers Syndicate shaft with Officer Lovell; that he saw defendant McCabe when he came out of the Rosebud shaft; that he searched him and found upon him a candlestick containing part of a candle; that neither then nor at any subsequent time did the defendant McCabe make any statement to him concerning his presence there; that before he came out of the shaft he heard him say, "Open the door, Charley" to which no reply was made. "He opened the door and looked out; I could see his head come out, then he shut the door again and went down, went out of sight: It was probably ten minutes before he opened it again and walked out. I asked him who 'Charley' was, something to that effect, and he said he was speaking to us to open the door. I did not know him prior to that time."
Witness J. F. Lone, upon the part of the state, testified to the effect that permission had not been granted defendants to enter upon the Rogers Syndicate lease.
Thomas G-. Lockhart, upon the part of the state, testified that the Red King mining claim was the property of the Florence-Goldfield Mining Company; that upon the 400-foot level of the Little Florence lease, on the Red King claim, there was a very small streak of very high-grade ore, one place about the width of a finger; that the tunnel connecting the 300-foot level of the Rogers Syndicate lease and the O. K. Fraction was upon Merger property; that on the underground workings of the Red King mining claim one could not • enter any other outside property except the tunnel that leads into the 0. K. Fraction.
Upon the part of the defendants, the following testimony was offered:
Defendant J. R. Thompson, in his own behalf, testified substantially as follows: That on the evening of December 9, 1907, he went underground through the O. K. Fraction, or Rosebud shaft; that he went down for the purpose of looking over the property with a view of leasing; that one F. 0. Altingerwas connected with him in desiring to obtain a lease; that he was not familiar with the underground workings of the Rogers Syndicate lease; that he did not know that he was ever in the workings of the said lease; that no one authorized him to go down the shaft of the O. K. Fraction, nor did he ask any one permission so to do; that he did not then know who owned the ground he was on that night; that he went down the shaft about 6 o'clock in the evening; that if the the ground proved to be good for leasing purposes he intended to find out afterwards to whom it belonged; that he did not think any one had the lease on the Rosebud shaft; that he knew the shaft by the name being over it; that he made some inquiries around town as to who owned the Rosebud shaft, but did not find any one who knew; that from the time he went down the shaft until he was arrested he was investigating every drift, every crosscut, and every level there was in the shaft; that he had only one candle which he burned all the time; that the only man he thinks he asked as to who owned the ground, or whether it was idle, was a man named Donnelly who was well acquainted around there; that the last he heard of Donnelly he was in Rawhide.
W. M. McCabe, one of the defendants, testified in effect as follows: That he met defendant Thompson downtown on the evening of December 9th, and that Thompson asked him to go out and look at a piece of property; that he, Thompson, said he wanted to go and look for a lease if he could find one; that at Thompson's request and for that purpose he went down the Rosebud shaft; that he ran when Thompson was arrested because he was scared; that he was a miner by occupation; that he had been in the Goldfield district about a year and a half prior to that time; that he had been employed in the Gold Bar Extension, the Mohawk Florence and the Jumbo Ledge mines; that the Mohawk Florence was just adjoining or very near the Rosebud shaft; that the Rosebud was working for a time while he was employed on the Mohawk Florence; that he did not knoAv the Rosebud lease was on Florence ground; that when he worked for the Mohawk Florence, the Rogers Syndicate lease was working-part of the time; that the Rogers Syndicate shaft was distant five hundred or six hundred feet, if not more, from the Mohawk-Florence shaft.
F. 0. Altinger, a witness upon the part of the defendant, testified as follows: That he was acquainted Avith the defendant Thompson; that he was formerly an assayer and pretty Avell acquainted with the mines; that about thirty days prior to the 9th day of December, 1907, he had a conversation Avith Mr. Thompson in Avhich he told him that if he could find a good lease which stood a first-class chance of getting ore, he, Altinger, could raise from five to tep thousand dollars to Avork it with; that, about the 1st of December, Thompson came to him saying he had a proposition of a lease on Combination Fraction, which Avas formerly let to Davis; that he turned doAvn the proposition, asserting that he did not consider it good on account of being too expensive, and that the parties he had in view to go in Avith him preferred a lease on Florence property; that he told Thompson that if he could get anything around the Florence or on the Florence that had a good showing, he, Altinger, could get the money; that Thompson then spoke to him about a lease he thinks on the O. K. Fraction, adjoining the Rogers Syndicate, and that he told him, Thompson, that if he could get that he could get plenty of money; that he had had such conversation Avith others besides Mr. Thompson; that Avhen Thompson first came to him, it Avas in regard to the Loftus-Davis lease; that Thompson never made a statement to him that he had negotiated for a lease on the Florence; that he suggested the Florence to Thompson, but that he did not suggest that he go out and go doAvn the shaft and examine the workings.
C. C. Inman testified upon the part of the defense as folIoavs: The he was the constable of Goldfield district and Avas such on the night of December 9, 1907; that he Avas acquainted with defendant Thompson; that at that time Thompson was a' deputy constable and had authority to carry a revolver; that Thompson was appointed a deputy constable for the 'purpose of fire police, and fire warden for gasoline stoves and such-things, for-the purpose of helping to prevent fires.
The indictment in this case is based upon the provisions of section 158 of the-crimes and punishments act (Comp. Laws, 4749), which reads: "Every person who shall attempt to commit a public offense, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall, in cases where no provision is made by law for the punishment of such attempt, be punished" etc.
In an attempt to commit a crime, three elements are involved: First—The intent to commit the crime. Second— Performance of some act towards its commission. Third— Failure to consummate its commission. (Graham v. People, 181 Ill. 477, 488; People v. Fleming, 94 Cal. 308; Jones v. State, 90 Ala. 628; Hicks v. Commonwealth, 86 Va. 223, 19 Am. St. Rep. 891; 12 Cyc. 177; 3 Am. & Eng. Ency. Law, 2d ed. 250, 254; 3 Ency. PL & Pr. 97.)
It may be conceded in this case that if the' evidence is sufficient to prove an intent to steal upon the part.of the defendants, that all the elements of the offense are sufficiently established to warrant the conviction. Failure to consummate the alleged, or any, offense is manifest. The entrance upon the underground workings of the mine without permission was doubtless sufficient to constitute the performance of an act towards the consummation of the offense, conceding the evidence sufficient to establish the unlawful intent.
The only question for determination is whether there are facts and circumstances disclosed, by the evidence in the case warranting the jury in finding the felonious intent to commit grand larceny. From the facts that the defendants were clandestinely prowling in the mine which they knew belonged to others and without permission from the owners, in the nighttime with a prospector's pick and two large ore sacks; that instead of making any reasonable excuse for their presence in the mine the one who had the opportunity took flight, and then instead of going directly out of the mine, stealthily put his head out of the shaft, called " Charley" went back out of sight and waited, and when he finally came out and was apprehended, made an untruthful statement that by using the name he intended to call the officer whom he did not know and who did not have that name, that he did not know what mine he was in except that he saw the name over the shaft he had entered, the proof that there was ore in the mine worth from one to ten dollars a pound, and other circumstances proved by the state, we cannot say that there was not some substantial evidence which a jury might consider as warranting a verdict of guilty, notwithstanding the claim made by the defendants on the trial that they went into the mine for the purpose of examining it with the intention of trying to obtain a lease if the ground looked favorable.
It is well settled by this and other courts that, where the evidence is conflicting, a verdict will not be disturbed where there is substantial evidence to support it. It was the province of the jury to weigh the evidence and determine the credibility of the witnesses. (State v. Yellow Jacket S. M. Co., 5 Nev. 415, 418, 419; Solen v. V. & T. R. R. Co., 13 Nev. 106; Welland v. Williams, 21 Nev. 230; Simpson v. Williams, 18 Nev. 432; Reed v. Reed, 4 Nev. 395; Lewis v. Wilcox, 6 Nev. 215; Bryant v. Carson Lumbering Co., 3 Nev. 313; Winter v. Fulstone, 20 Nev. 260; Watt v. Nev. Cent. R. R. Co., 23 Nev. 154, 165; Carlyon v. Lannan, 4 Nev. 156; Murphy v. S. P. R. R. Co., 31 Nev. 120; State v. Buralli, 27 Nev. 56; State v. Wong Fun, 22 Nev. 336; State v. Marks, 15 Nev. 38.)
As in any other case where the intent is material, the intent need not be proved by positive or direct evidence, but may be inferred from the conduct of the parties and the other facts and circumstances disclosed by the evidence.
If the conduct of the parties, considered in connection with the surrounding circumstances of the case, is indicative of the felonious intent charged in the indictment 'and leaves no reasonable doubt in the minds of the jury regarding such intent, the felonious intent is sufficiently established. To hold otherwise, would tend to put a premium on crime, render property rights and lives less secure, and aid criminals in escaping just punishment for their crimes or attempts to commit them. (State v. Ah Chuey, 14 Nev. 79; State v. Clifford, 14 Nev. 72; State v. Gardelli, 19 Nev. 319; State v. Espionozei, 20 Nev. 209; Sipple v. State, 46 N. J. Law, 197; Griffin v. State, 26 Ga. 493; State v. Jones, 70 Iowa, 508.)
The judgment and order of the lower court overruling appellant's motion for a new trial are affirmed.
Talbot, J.: I concur.