Sullivan v. Territory of Oklahoma

Opinion of the court by Hainer, J.: The appellant, William H. Sulliyan, was indicted, tried, and convicted in the district court of *500 Greer county for the crime of ’Stealing a cow, and was sentenced for a term of five years in the territorial prison at Lansing, Kan. Motions for a new trial and in arrest of judgment were duly filed, overruled, and exception® reserved. From 'this judgment and sentence the defendant brings the case here on appeal. The first objection urged by the plaintiff in error is that the indictment does not state facts sufficient to constitute a public offense, and hence the court erred in overruling the demurrer thereto. The charging part of the indictment is a® follows: “That William H. Sullivan and George Slaton, late of the county of Greer, aforesaid, on orab out the 1st day of January, in the year of our Lord 1898, in the county of Greer and Territory of Oklahoma, aforesaid, did fraudulently, feloniously, stealthily, take, steal, and carry away one cow, the same being the corporeal personal property of Lock Bros. & Allen, a firm composed of John Lock, Allen Lock, and Joe Allen, with the intent to deprive the said Lock Bros. & Allen, the said .firm composed of the said John Lock, Allen Lock, and Joe Allen, of said corporeal personal property.” In the case of Hughes v. Territory, this volume, p. 28, this court held that section 1, art. 1, ch. 20, Session Laws Oklahoma, 1895, which provides, “that if any person shall steal any stallion, mare, colt, gelding, ridgling, or any ass, genet or mule, or any bull, cow, calf, steer or stag, he shall be guilty of a felony, and on conviction thereof, shall be punished by confinement in the territorial penitentiary for a term of not less than one nor more than ten years,” creates a separate and distinct offense from larceny, as defined by section 2371, Statutes of Oklahoma, 1893, and does not make the stealing of the domestic *501 animals named in such act grand larceny, without regard to value. Mr. Justice Burwell, after an able and exhaustive review of authorities, said: “An examination of the authorities will show that ‘larceny’ and1 ‘stealing,’at common law, had the same meaning; and1 consequently stealing, as here defined, is the wrongful or fraudulent taking and removing of personal property, by trespass, with a felonious intent to deprive the owner thereof, and to convert the same to his (the taker’s) own use.” And again: “The legislature has modified the meaning of the word ‘larceny,’ as used in the crimes act, so that the taking of personal property, accomplished by fraud or stealth, and with intent to deprive another thereof, is larceny, regardless of whether or not it was taken for the purpose of depriving the owner thereof, or for the purpose of converting it to the use of the taker. Thefefore, while ‘stealing’ and ‘larceny’ at common law were synonymous terms, our statute has given to the word ‘larceny’ a much broader meaning than it then 'had, while ‘steal’ or ‘stealing’ has not been defined by our statutes, and must be construed according to its common-law meaning.” Hence the indictment, when measured by these requirements, wholly fails to state facts sufficient to constitute a public offense under either the statute of 1893 or 1895. The indictment is fatally defective under the 1895 ■statute, for the reason that it fails to charge that the cow was taken by the defendant with a felonious Intent to convert the same to his (the taker’s) own use. It is also fatally defective under the 1893 statute, for the reason that it does not allege the value of the animal charged to have been stolen. The demurrer to the indictment should therefore have been sustained. *502 Other errors are assigned, but, as the case must be reversed and remanded for a new trial, it is not necessary to review them- here. The judgment of the district court is therefore reversed, and the cause remanded', with directions to sustain the demurrer to the indictment, and to resubmit the cause to the grand jury for further proceedings in accordance with the views herein expressed-. B-urwell, J., having presided in the court below, not sitting; all of -the other Justices -concurring.