Appeal from Fifth District.

this Code," and while it is true that it is provided by Comp. Laws 1917, section 7892, that the rule of the common law that penal statutes are to be strictly construed has no application to our statutes, and that our statutes are to be more liberally construed with a view of effecting their objects and to promote justice, still, we think, in the absence of some express provision in the Code of Criminal Procedure to the effect that the courts may exercise some discretionary power in extending the time within which a notice of motion for new trial may be made, the strict letter of the statute must be adhered to, and therefore it is beyond the power of the courts to extend the time limited by section 9200, supra. We think that not only the best interests of the criminally accused but of society and the state demand prompt attention to criminal procedure and final and effective determination of the cases in which parties are charged with crime. Under our statutes, in criminal cases, the grounds upon which a new trial may be applied for are clearly expressed, and we cannot conceive how in any case the interests of the accused and complete justice will not be best subserved by requiring him to act within the time expressly limited by the statute. Davis v. State, 31 Neb. 240, 47 N. W. 851; Hubbard v. State, 72 Neb. 62, 100 N. W. 153, 9 Ann. Cas. 1034; Ward v. State, 171 Ind. 565, 86 N. E. 994; State v. Maddox, 153 Mo. 471, 55 S. W. 72; State v. Tolla, 73 N. J. Law, 249, 63 Atl. 338; State v. Hayden, 131 Iowa, 1, 107 N. W. 929.

2

However, the state's motion to dismiss the appeal must be denied. The record shows that while the verdict of conviction by the jury was rendered May 17, 1918, the judgment upon the verdict was not rendered and entered until September 21, 1918. On the same day, September 21, 1918, the defendant served and filed his notice of appeal to this court. As provided by Comp. Laws 1917, section 9209: "All appeals in criminal cases must be taken within two months after the entry of the judgment appealed from."

Therefore this appeal was taken in time.

As to the merits of the appeal: It is first contended by the defendant that the evidence is insufficient to sustain the yerdict.

State v. Sawyer, 54 Utah 276.

3

The testimony shows that the defendant, a resident of Cedar City, Utah, for about twenty-five years previous to the offense charged had been engaged in farming and stock raising. He had ranged his stock on what is known as the Cedar Bottoms in the winter time and on the Cedar Mountains in the summer time. He owned two ranches, one on the Cedar Bottoms, and one on the Cedar Mountains, and moved his stock from ranch to ranch for the purpose of feeding and grazing them. The complaining witness, Hugh L. Adams, also owned a ranch at Cedar Bottoms adjoining the defendant's ranch. Witnesses for the defendant testified that in the spring of 1915 a bull calf was born from one of defendant's cows at his Cedar Bottoms ranch; that it was kept there and was neither branded nor marked. Later this calf, after being kept for a while for stock-breeding purposes, was castrated and turned out on the open range. The testimony further shows that the defendant, on about November 17, 1917, notified the sheriff of Iron county of his intention of driving his stock into Nevada for the purpose of grazing them there, and for that reason requested the sheriff to make an inspection so that his animals might be driven out of Utah after due inspection as required by law. The sheriff, on inspecting defendant's stock for that purpose, discovered that the animal in question was not branded, bore earmarks not claimed by defendant, and therefore ordered the defendant not to remove it until further investigation could be made. The attention of Mr. Adams, the complaining witness before the magistrate, was called to the animal, and he made claim that the animal had been stolen, and that it belonged to him. At the trial much testimony of a conflicting nature was given as to the identity and the ownership of the animal. The witnesses for the defendant testified that they were acquainted with it, and that it was owned by the defendant. The witnesses for the state, directly to the contrary, testified it was owned by Adams. The jury were permitted, under the instructions of the court, to view the animal. After doing so and considering the testimony, by their verdict they evidently believed the state's witnesses. We have no power to disturb

Appeal from Fifth District.

their finding in that regard, even were we disposed to do so. As we view the testimony, the contention made that the evidence is insufficient to justify the verdict is wholly untenable.

The defendant next complains that the trial court committed errors in the admission and exclusion of testimony over defendant's objections. Many of the assignments made by the defendant are wholly without merit, and we deem it unnecessary to discuss them. Counsel for defendant suggests in his printed brief and argument that they may be grouped in one discussion, and then proceeds to argue that the trial court committed error in the exclusion of certain testimony tending to show that the intent of defendant in claiming possession and ownership of the animal in question was under a bona fide claim of right and without any intent to steal the animal. In the course of the trial the following questions were propounded to the defendant in that regard:

"Q. Did you on that occasion when Mr. Fife (the sheriff) came there, on the Antelope road, to inspect your cattle-did you make any effort to rush the cattle by or crowd them by rapidly, so as to prevent a full opportunity, his opportunity to inspect them?"

"Q. Did you honestly believe that stag to be your property and your animal that you raised as you testified?"

"Q. Did you honestly believe that stag at that time to be your property? And do you yet honestly-do you still honestly believe that to be your property and your steer?"

The first question above was objected to by the state on the ground that it was leading and suggestive, and each of the other questions on the ground that they were self-serving declarations. The objections were sustained by the court, and the defendant was not permitted to answer.

We think the trial court's refusal to permit the defendant to testify as to his intent and belief in possessing and claiming the animal in question was clearly error. Under the facts and circumstances as shown by this record the defendant should have been permitted to testify that he believed the animal he was accused of feloniously stealing and taking away was his property and his possession a rightful one.

Under our Penal Code (Comp. Laws 1917, section 7908) "in every crime or public offense, there must exist a union or joint operation of act and intent, or criminal negligence."

State v. Sawyer, 54 Utah 276.

4

If the defendant honestly believed the animal in question to be his own property, that it was his intent and purpose of possessing and driving it into Nevada as such, then, even though the testimony conclusively shows he was mistaken and the animal was the property of another, he had no motive or purpose to commit crime, and the question as to what the defendant honestly believed and intended was one of fact to be submitted to and determined by the jury. In Conway v. Clinton, 1 Utah, 215, an early civil case, where one of the issues was the malice of defendant who was charged with maliciously and wantonly destroying the goods of plaintiff, the territorial Supreme Court held:

"Where the motive of a party is thus in issue, he may testify to it himself. If he should say his motives were malicious, it would properly inure to the advantage of the plaintiff, and it is none the less competent for him to disclaim the malice. Doubtless, a witness in thus speaking of his own motives may state as a fact that which no other witness can directly and categorically deny, but the weight of the testimony is for the jury to determine."

Then again, in a criminal case People v. Monk, 8 Utah, 35, 28 Pac. 1115) the territorial court speaking approvingly of the rule contended for by defendant here, and quoting from Bishop on Stat. Crimes, section 132, said:

"One who, while careful and circumspect, is led into a mistake of fact, and doing what would be in no way reprehensible were they what he supposes them to be, commits what, under the real facts, is a violation of a criminal statute, is guilty of no crime.' In such a case a criminal mind and intent is wanting."

Speaking of the rights of the accused as a witness, Underhill, Crim. Ev. section 59, says:

"He must be permitted fully to unfold and explain his actions, and to state the motives which he claims prompted them. It is, within certain limits, relevant for him to state what intention was present in his mind when he participated in a transaction which is in issue."

In speaking of the rule contended for, Wharton, in his admirable work on Criminal Evidence (10th Ed.) at page 1698, where many authorities are collated and may be found, says: The rule is universal that on a prosecution for crime, whenever the intent of the accused is relevant to the issue, or when

Appeal from Fifth District.

ever the intent of the accused in doing the act charged becomes material, the accused may testify as to his own motive and intent."

While we must hold that the rule contended for is a proper one, and that the refusal of the trial court to permit the defendant to make answers to the questions thus propounded to him by his counsel ordinarily would be reversible error, after carefully reviewing the record before us as a whole, we are of the opinion that the defendant was not prejudiced by the rulings of the court complained of by him.

5

The defendant was permitted to testify at great length to his acts and conduct toward the animal, the circumstances under which it came to his possession, his reasons for claiming ownership, its physical appearance and condition, the causes therefor, and his intent and purpose in seeking to drive it from the state. Moreover, he was on other occasions during the progress of the trial permitted, without objection, to make answers to very similar questions to those of which he here complains of being denied. We quote:

"Q. Was the stag that you started from the Cedar Bottoms with the bunch of cattle, that you notified Sheriff Fife about to come and inspect, the stag that you claimed as one you had raised and believed to be yours? A. Yes, sir."

"Q. Do you still upon the inspection of the stag identify it as the one you have raised as you have testified to and the one that you believe to be yours? A. Yes, sir."

Then, again, the defendant, after being recalled by his counsel for further examination at the trial, was permitted to testify, without objection, as follows:

"Q. That is your ranch in the mountains. Mr. Sawyer have you ever in your life, and more especially during the year 1917, knowingly or intentionally stolen or taken any animal belonging to Hugh L. Adams? A. No, sir."

The import and meaning of the defendant's testimony thus received is, to our minds, precisely the same as would have been his testimony had the court permitted him to answer the questions he now complains of being denied. He therefore suffered no prejudice.

Upon the trial, the district attorney requested that the