State v. Rathbone

STOCKSLAGER, J. — The county attorney of Lincoln county charged defendant with the crime of grand larceny. After the usual allegations, the information charges that one Ernest Rathbone, on the fourteenth day of August, 1900, in the county of Lincoln, and state of Idaho, did then and there feloniously steal, take, and drive away two mares, the personal property of another, to wit, the personal property of George M. Brown, all which is contrary to the form of the statutes, etc. Counsel for defendant demurred to this information, alleging: “1. Said information does not state a public offense. 2. Said information does not substantially conform to the requirements of section 7679 of the Revised Statutes, in that the said information is not direct and certain in regard to the offense charged, and more particularly for the reason that it does not give a particular description, or any description, of the animals alleged to have been stolen. 3. Said information does not substantially conform to the requirements of section 7678 of the Revised Statutes of Idaho, in this: that it does not contain a statement of the facts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and more particularly in that said information does not give any description of the animals therein alleged to have been stolen by defendant, or either of them. 4. More than one offense is charged in the information herein, in that two mares are alleged to have been stolen, and that the stealing of each of said mares, if they were stolen at all, was a separate and distinct offense.” This demurrer was overruled by the court, which is assigned as error. — 165 — The defendant demanded a bill of particulars from the county attorney, which was refused by said officer, whereupon he filed his motion, supported by affidavit, and presented it to the court, to wit: “Comes now the defendant herein and moves the court for an order requiring the county attorney of Lincoln county, Idaho, the prosecutor herein, to give and furnish the defendant with a particular description of the mares, and each of them, charged in the information to have been stolen by the defendant.” This motion was denied by the court, which is assigned as error. The defendant then moved to set aside the information, based upon the following grounds: “a. Defendant has never had a preliminary examination upon the offense charged in the information, and has never been held upon said charge to answer before this court, b. At a preliminary examination had before W. J. Smith, justice of the peace, of Shoshone precinct, in said Lincoln county, state of Idaho, on January 11, 1901, said preliminary examination being the basis and foundation of this prosecution, and the so-called depositions therein having been filed in this court upon January 14, 1901, the depositions of the several witnesses examined thereat, to wit, George M. Brown, J. D. McCoy, and Vance L. Stowell, said persons being all of the witnesses examined at said preliminary examination, were not read to said witnesses, or to either or any of them, and corrected or added to, until such depositions conformed to what said witnesses, or either or any of them, declared to be the truth, e. That none of the depositions taken at said hereinbefore mentioned preliminary examination were or are certified to by the said magistrate, d. That said magistrate did not indorse upon the depositions taken at said preliminary examination an order of commitment.” This motion was denied by the court, and is alleged as error. Thereafter a trial was had, and on the tenth day of April, 1901, the jury returned a verdict finding the defendant guilty as charged in the information. On the twelfth day of April, 1901, the defendant was sentenced to a term of seven years in the penitentiary of the state. The defendant appeals to this court from the judgment of the trial court, and also from the order of said court overruling his motion for a new trial. — 166 — The first error alleged and urged is the ruling of the court upon the demurrer to the information. The information charges the defendant with the larceny of two mares, the property of George M. Brown. Counsel for appellant urges that this description is not sufficient to enable a person of common understanding to know what is intended. In defining grand larceny, section 7048, subdivision 3, of our statute says: “When the property taken is a horse, mare, gelding,” etc. Our attention is called to People v. Saviers, 14 Cal. 29. The syllabus •says: “Under our law an indictment is good if it state the acts constituting the offense in ordinary and concise language, and in such a way that a person of ordinary understanding can know what was intended. Where a statute introduces a new offense, without reference to anything else, an indictment describing the offense in the words of the statute is sufficient. The offense here is dealing monte for money. This alone constitutes the crime.” The indictment charged that George Saviers, on or about the twenty-third day of February, 1859, did at the county of Placer, etc., at the house known as “Tyne’s Hall,” in the town of Dutch Flat, willfully, unlawfully, and feloniously deal the game of monte, then and there played for money. In delivering the opinion of the court, Mr. Justice Baldwin says: “It would he very difficult to give the act of 1857 any effect if we recognized the proposition of appellant’s counsel; for how full and explicit must be the description of the offense, and how many of the circumstances bearing a relation to it must be stated ? If the room is to be described, how full must be the description? If a person betting must be named, must not all bettors be named, and all spectators, too? And if a variance should occur in any of these particulars, would not the defendant he entitled to an acquittal? We think these matters have nothing to do with the essence of the offense, which is the playing for money at the place specified and about the time.” People v. Hood, 6 Cal. 236, to which our attention is called, says: “The indictment in this case charges the accused of the crime of arson in this: 'That on a certain day,’ etc., 'he did burn or cause to be burned a certain dwelling-house,’ ” etc. Mr. Justice Murry, in the opinion, says: “This is not a sufficient description — 167 — of the offense — 1. Because the charge is laid in the alternative, whereas it should be special; and 2. Because the facts and circumstances of the alleged offense are not set forth in such a manner as to apprise the prisoner of the offense charged against him, so that he may be prepared for his defense.” In People v. Wallace, 9 Cal. 30, it is said: "An indictment must contain a statement of the facts constituting the offense charged against the defendant.” In People v. Littlefield, 5 Cal. 355, it is said: "Under section 247 of the Compiled Laws, no indictment shall be deemed insufficient; nor shall the trial judgment, or other proceeding thereon, be affected by reason of any defect or imperfection in matters of form which shall not tend to the prejudice of the defendant. It would be sufficiently certain under the statute that the indictment should charge the defendant with feloniously taking three head of cattle, without showing the particular species of cattle taken. The defendant could not be prejudiced in this cause by language of this character.” People v. Russell, 81 Cal. 616, 23 Pac. 418, holds that an information or indictment drawn substantially in the language of statute which defines the offense is sufficient. In State v. McGaffin, 36 Kan. 315, 13 Pac. 560, the supreme court of Kansas holds that as a general rule it is sufficient if an indictment or information charges an offense in the language of the statute, and even the statutory words need not be strictly pursued, but others conveying the same meaning may be used. In State v. Ellington, 4 Idaho, 529, 43 Pac. 60, this court said: "Where, as in Idaho, the statute defines what shall constitute murder, an indictment which sets forth the crime in the language of the statute is sufficient.” Under these authorities was the lower court in error when it overruled defendant’s demurrer to the information ? Our statute makes the felonious taking of a horse, mare, gelding, etc., grand larceny. The information charges the felonious taldng of two mares in the language of the statute, and that they were the property of George M. Brown, and feloniously taken from the range in Lincoln county. This, we think, was sufficient to inform the defendant what charge he had to meet. We find no error in the order of the court overruling defendant’s demurrer to the information. — 168 — The next assignment of error is the ruling of the court on "defendant’s motion for bill of particulars.” In support of' this contention learned counsel calls our attention to Wharton’s-Pleading and Practice, ninth edition, l?’02. The author says: "Whenever the indictment is so general as to give the defendant inadequate notice of the charge he is expected to meet, the court on his application, will require the prosecution to furnish him with a bill of particulars of the specific charge to be pressed, or the evidence intended to be relied upon. That indictments may be thus general, and yet in entire conformity with precedent, has been heretofore abundantly shown. It is allowable to indict a man as a common barrator, or as a common seller of intoxicating liquors, or as assaulting a person unknown, or as conspiring with persons unknown to cheat- and defraud the prosecutor by divers false tokens and pretenses; and in none of these cases is the time material, so that the defendant is obliged to meet a charge of an offense comparatively undesignated committed at a time not designated at all.” Hence has arisen the practice of requiring in such cases bills of particulars, and the adoption of such bills, instead of the exacting of increased particularity in indictments, is productive of several advantages. It prevents much cumberous special pleading, and consequently, failure of justice, as no demurrer lies to bills of particulars; and it gives the defendant in plain, unartifieial language notice of the charge he is to meet. In Rex v. Hodgson, 3 Car. & P. 422, to which our attention is called by counsel for appellant, it is said: “If a prisoner indicted for embezzlement does not know the specific acts of embezzlement intended to be charged against him, he should apply to the prosecutor for a bill of particulars of the charges; and, if it be refused, the judge will, on motion supported by proper affidavits, grant an order for such particulars to be given, and postpone the trial, if necessary. Such particulars ought at least to state the names of the persons from whom the money is alleged to have been received.” Rex v. Bootyman, 5 Car. & P. 300, is to the same effect. In Williams v. Commonwealth, 91 Pa. St. 493, it is said: “An indictment which charges the crime substantially in the language of the act of assembly is sufficient under the Criminal Procedure Act of — 169 — 1860. The accused may, however, apply to the court or a judge for an order for a hill of particulars, and on the trial the commonwealth will be restricted to the items specified.” In simplifying indictments it was not the intendment to make their brief and comprehensive terms a cover for snares to be sprung on the accused. Whether a refusal to order the bill would be subject to review is a question not now raised. In People v. McKinney, 10 Mich. 54, it is said: “Such an order ought never to be refused when the court can see any reason to believe the particulars necessary to inform the defendant of the particular transactions or instances of embezzlement intended to be pressed against him, so as to enable him to meet them.” In Commonwealth v. Snelling, 15 Pick. 329, it is said: “The power of this court to order a bill of particulars in a case proper for its application has been recognized by this court as one of the powers incident to its general authority in the administration of justice.” In the case of Tilton v. Beecher, 59 N. Y. 181, 17 Am. Rep. 340, the court says: “It is not contended, on the part of the appellant and it would have been useless to contend, that the present application was founded upon legal right, or that it did not rest in the discretion of the court, nor that, if the order appealed from was the result of a fair exercise of that discretion, we should be asked to review it.” This language is used with reference to an application for a bill of particulars. In People v. Tweed, reported in 63 N. Y. 199, the opinion says: “As to that portion of the order in relation to a bill of particulars, it is sufficient to say that it was a matter purely discretionary.” In Commonwealth v. Giles, 1. Gray, 466, the syllabus says: “It seems that the question whether a bill of particulars or specification of facts shall be required is, in all cases, civil and criminal, exclusively within the discretion of the presiding judge.” Owing to the fact that this is the first time this court has ever been called upon to determine the right of the defendant to demand a bill of particulars in a criminal case, we have carefully examined all the authorities to which our attention has been called. Our statute makes no provision for such demand, and all learned counsel for appellant claims is a legal right, not statutory. This being true, it would certainly be a matter of dis — 170 — cretion in the trial court, and should never be disturbed, unless it is apparent that there has been a gross abuse of it. We find no error in the order of the court overruling appellant’s motion for a bill of particulars. The next assignment of error is that the evidence was insufficient to support the verdict, and that the trial court should have granted a new trial. Counsel for appellant says in his brief “that the evidence does not show the animals in question were stolen at all, or taken by defendant, or anyone else, without the authority of the owner thereof.” George M. Brown testified he resided at Shoshone, and engaged in stock business— raising horses mostly; in riding the range in September and October discovered that most of his horses had gone off the range; went to Kamima, and was informed by the agent that a shipment of horses had been made by E. Rowles; followed the cars east; found some of his stock within three or four miles of New Richland, Minnesota — one roan mare, branded “G B” on the left shoulder, with quarter circle under “B,” and another a light bay mare, branded a single “G B” on the left shoulder, with a strip in the face. “I traced them by taking the numbers of the ears off the R. R. Co.’s books at Kamima, Idaho, and traced them from there to New Richland. On arriving at New Richland, I hunted up the shippers — the man that had shipped the contents of those numbered ears that I was following. They took me and showed me this stock, with others, and these two particular animals. After I found these two horses, I returned home and caused Mr. Rathbone’s arrest.” James Wilson testified he had known defendant eight years; about the middle of August, Rathbone came to his place and hired him to drive some horses to the railroad at Kamima; gathered the horses west of his place, drove them to Kamima, and loaded them into cars; gathered them Sunday, August 12th, and on the 13th drove them to Kamima; has known George Brown for twelve years, and knows his brand; understands it to be “G B” on left shoulder, etc.; and says he (Brown) claims three different irons, and described them — one with a quarter circle under the “B”; the other, the necktie brand. “Among the animals I drove to Shoshone, I noticed a yellow mare with a ‘G B’ brand, and a roan — 171 — mare with a CG B,’ quarter circle under the TB,’ I do not mean a light bay, when I say yellow horse. The roan mare, I believe, with the fG B,’ quarter circle, as near as I can remember, had a white face, or Toaner’ than the balance of her. These horses were driven from Lincoln county, Idaho.” The agent of the railroad company at Kamima testified that the defendant shipped horses (does not pretend to describe them) from Kamima in the name of E. Rowles, on August 14th, consigned to E. Rowles, at Butte, destination Duluth, Minnesota. By this evidence it is shown that the defendant was in the possession •of the property of Brown, and that the horses were gathered from the range in Lincoln county, and shipped from Kamima to Minnesota; that they were shipped in the name of E. Rowles, and consigned to E. Rowles at their destination. Counsel for appellant calls our attention to 2 Bishop’s Criminal Law, page 799, and note 1, on page 465, in support of his contention. The first citation says: “The somewhat technical ■doctrine of this subtitle is that, simultaneously combining with the intent to steal, every larceny requires a trespass in the asportation, sometimes with less precision of language termed a Taking’ — less fully expressed.” The rule — rather technical than resting on any clear reason, and not generally adapted to modern needs, yet established by ancient and later usage past cverthrow — is that there can be no larceny without a trespass. State v. Moon, 41 Wis. 684, holds that in prosecutions for larceny, if the owner of the property alleged to have been stolen is known, and his attendance as a witness can be procured, his testimony that the property was taken from him without his consent is indispensable to a conviction. In Witt v. State, 9 Mo. 672, it is said: “The felonious intent is the material ingredient in the offense. To constitute this offense, therefore, in any form, there must be a taking from the possession, or conveying away against the will of the owner, and a felonious intent to convert it to the offender’s use.” In support of this contention learned counsel cite Anderson v. State, 14 Tex. App. 49; Dresch v. State, 14 Tex. App. 175; Wilson v. State, 45 Tex. 76, 23 Am, Rep. 602. These three authorities support the contention of appellant. The supreme court of California (People v. Davis, — 172 — 97 Cal. 194, 31 Pac. 1109) say: “It is not necessary to allege in the indictment or information for larceny that the property was taken against the will of the owner.” Consent of the owner to the taking is matter simply of defense, and need not be averred or proved by the prosecution. In the case at bar it was shown on hehalf of the prosecution that the witness, George M. Brown, was a half-owner in the property alleged to have been stolen, and that he followed it from Kamima, Idaho, to New Richland, Minnesota, and, after finding two mares that he testified were his, returned to Idaho and caused the arrest of defendant for the larceny of these horses. He was tried and convicted of this charge by a jury of his countrymen. We do not think the court erred in refusing to grant a new trial. (See State v. Haverly, 4 Idaho, 484, 42 Pac. 506; Chamberlain v. Woodin, 2 Idaho, 642, 23 Pac. 177; People v. Lewis, 124 Cal. 551, 57 Pac. 470, 45 L. R. A. 783; Simpson v. Remington, 6 Idaho, 681, 59 Pac. 360; People v. Un Dong, 106 Cal. 83, 39 Pac. 12.) The next assignment of error is that there is a variance between the proof and the allegation of ownership as alleged in the information. It is true that the information charges the larceny of the two mares from George M. Brown, while the proof shows they were the property of George M. Brown and R. L. Brown. In support of this contention counsel for appellant cites us to People v. Frank, 1 Idaho, 200. In this case it is said by Mr. Justice Cummins, who delivered the opinion of the court: “In this case, as I have stated, it was averred that the property belonged to-Whiteman. On the proof it appeared to be the property of M. Whiteman and one Arnheim doing business as partners, and that both were in and about the store where the goods were stolen.” Mr. Justice McBride dissents from the views reached by the court in this case. In Commonwealth v. Trimmer, 1 Mass. 476, the indictment charged that “Philip Trimmer, Susanna Trimmer, the wife of said Philip, and Patience Whitney, broke and entered the store of Joseph Haley with intent to steal, and that they did steal therefrom the goods, etc., of said Haley, of the value, etc., against the statute. It appeared in evidence that the goods stolen were — 173 — the property of Haley and one Joshna Emery, who were partners in trade.” In this case, as in People v. Frank, the goods ■stolen were from the store of Haley &. Emery. Our attention is .also called to People v. Wallace, 94 Cal. 497, 29 Pac. 950; People v. Hughes, 41 Cal. 234; Clark v. State, 29 Tex. App. 437, 16 S. W. 171; Sharp v. State, 29 Tex. App. 211, 15 S. W. 176; McDowell v. State, 68 Miss. 348, 8 South. 508; People v. Hall, 19 Cal. 425; Bishop’s Criminal Procedure, 3d ed., 718, 723, 752, 4886. In Clark v. State, 29 Tex. App. 437, 16 S. W. 171, the indictment alleged that the property stolen was the property of G-. R. West, and the proof showed it to be the property of one Clark. In People v. Hall, 19 Cal. 425, it is said: “An indictment for altering a brand of a horse with intent to steal, and charging the property as that of an estate, is bad.” In People v. Wallace, 94. Cal. 498, 29 Pac. 950, the official syllabus says: “In an indictment or information for larceny, where the stolen property is not otherwise described so as to identify the offense, the allegation of ownership is a material part of the description of the offense charged.” We have examined the other authorities cited, and find they hold to a similar view to those quoted. The attorney general calls our attention to section 7683 of our statute which says: “When an offense involves the commission of or attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.” Section 956 of the Penal Code of California, which is the same as our section above quoted, has been construed by the California court in People v. Smith, 112 Cal. 333, 44 Pac. 663. That court said: “Where the complaint before the magistrate charged the stealing of a steer belonging to and being owned by the estate of W. C. Elledge, deceased, and the information for grand larceny recited that the steer was owned by Joseph Elledge and Mrs. M. J. Elledge, as executor and executrix of the estate of W. C. Elledge, deceased, the variance was not fatal,” etc. In People v. Prather, 120 Cal. 660, 53 Pac. 259, a California ease, this language is used: “Under Penal Code, section 956, an erroneous allegation as to the person injured is not material.” In — 174 — People v. Watson, 72 Cal. 402, 14 Pac. 97, the official syllabus says: “In a prosecution for larceny, an information which alleges that the thing stolen was the property of a certain woman, is sufficient to sustain a conviction, although at the time of the larceny the alleged owner was a married woman, and the article stolen was bought with the money of her husband.” Counsel for both appellant and respondent cite State v. Farris, 5 Idaho, 666, 51 Pac. 772. The syllabus says: “Where the information alleges one C. to he the owner of the stolen property, and the proofs show that he was in possession of the property as the agent of the real owner, with full power to sell or otherwise dispose of the same, held sufficient to uphold the allegation in the information.” We find no error in overruling, appellant’s motion for new trial on the ground of insufficiency of the evidence to support the verdict. The next assignment of error is that the brands upon the animals alleged to have been stolen could not be given in evidence, unless it was shown that such brands had been recorded. Section 1179 of the Revised Statutes says: “In all civil suits, or in any criminal proceeding where the title of livestock is involved, the brand, or mark, on such animal is prima facie evidence of the ownership of the person whose brand, or mark, it may be; provided, that such brand has been duly recorded as required by this chapter. Proof of the right of any person to use such brand, or mark, may be made by a copy of the record of the same certified to by the county recorder of any county in which the same is recorded.” We find nothing in this section of the statute that prohibits oral proof of an unrecorded brand. Recording it makes it prima facie evidence “of the ownership of the person whose brand, or mark, it may be.”' Counsel for appellant urges that the proof of the brand was the only proof of the ownership of the animals alleged to have been stolen. The record does not sustain him in this contention. We think the evidence was properly admitted under the provisions of our statute. Error is assigned in the admission of the evidence of George M. Brown in tracing his horses from Kamima, Idaho, to New Richland, Minnesota. We find no error in the admission of — 175 — this evidence. Neither do we find error in the admission of the evidence of the sheriff, wherein he testified he went to Boise county to arrest the defendant. The last assignment of error is on the instructions given by the court on its own motion, and the refusal to give instructions requested by counsel for appellant. We have carefully examined the instructions given by the court, and think they fully and fairly state the law of the case. We find no error in those given by the court, or the refusal of those requested by counsel for appellant. The judgment of the lower court is affirmed. Sullivan, J., concurs.