State v. Wright

259 P. 298, 257 P. 699, 122 Or. 377, 1927 Ore. LEXIS 173

• Court: Oregon Supreme Court
• Decided: September 6, 1927
• Status: Published

Opinions

BEAN, J.

At the outset it is urged that the indictment is bad because it charges two crimes, to wit: Larceny of personal property, under Section 1947, Or. L., and also larceny of a cow, under Section 1950, Or. L. Section 1947, Or. L., under which the indictment was brought, reads as follows:

“If any person shall steal any goods or chattels, * * which is the property of another, such person shall be deemed guilty of larceny, and upon conviction thereof, if the property stolen shall exceed in value $35, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years; but if the property stolen shall not exceed the value of $35, such person, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than one year, or by fine not less than $25 nor more than $100.”

Section 1950, dealing more particularly with the larceny of animals, provides that if any person shall commit the crime of larceny by stealing any of certain classes of animals, including a cow, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary for a term of not less than one nor more than ten years, and also provides for lesser penalties.

The allegation in the indictment of the value of the cow did not reduce or raise the offense: State v. Brinkley, 55 Or. 131 (104 Pac. 893, 105 Pac. 708). Where, as in this state, the Code has so many sections dealing with the crime of larceny, it may easily be seen how an indictment drawn under one section of the Code might embrace some of the terms of a different section. It is, in fact, not difficult to conceive of a case where it would be impossible to draw an indictment under one section of the Code without necessarily including offenses set out in another section. The question is, Would this fact alone render the indictment demurrable? We think not: State v. Laundy, 103 Or. 113 (204 Pac. 958, 206 Pac. 290). Joyce on Indictments (2 ed.), Section 561, has this to say on the subject:

“If the description of one offense when complete necessarily implies or includes another, there is no repugnancy created which, renders their joinder in the same count improper. And as a general rule the fact that in describing an offense a part of the facts stated are descriptive of another offense does not render the indictment subject to the objection that it charges two offenses, and the words charging the minor offense may be treated as surplusage.”

Appellant’s demurrer to the indictment sets forth five grounds wherein it is asserted faulty. We have taken note of but one of these, as we consider the others without merit.

Error is assigned because of the overruling of a motion to make the indictment more definite and certain. As we have indicated, there was only one crime charged; therefore the motion was properly overruled. The indictment follows the words of the statute, and since it sufficiently informs the defendant of the crime charged against him we think that the court was correct in so holding.

It is contended on behalf of defendant that the trial court was not authorized to resubmit the case to the grand jury. Under the provisions of Section 1484 et seq., Or. L., the trial court is authorized, when it sustains a motion of defendant to set aside an indictment, or on motion of the district attorney, to resubmit the case to the same grand jury that found the first indictment or to another grand jury. An order to set aside an indictment, as provided in Chapter VIII, Title XVIII of the Code, is no bar to a further prosecution for the same crime: See Section 1488, Or. L. The point contended for is not well taken.

Appellant assigns eleven errors relative to the instructions given by the court to the jury. We have examined these carefully and have concluded that no error was committed; that the case was plainly and fairly submitted to the jury.

Defendant assigns error of the court in refusing to give the following instruction requested by defendant:

“I instruct you, gentlemen of the jury, that before you can convict this defendant on trial, you must believe beyond a reasonable doubt from the evidence in this case, that he is guilty of or in complicity with the original taking" and any subsequent connection after the taking would not be larceny in him, whether in good or bad faith; and if you believe that this defendant received the cow in question from J. E. Baxter, or any other property, after the felonious taking, whether in good or bad faith, he is not guilty of larceny, and you must acquit him, and return a verdict of not guilty.”

The court’s charge to the jury fully covered the request, by the use of the following language, viz.:

“I instruct you gentlemen of the jury, that if you find from the evidence in this case, that the defendant on trial secured the possession of the animal alleged in the indictment by trade or purchase after the same had been stolen, if you find that said animal had been stolen, from one who claimed to be the owner thereof, and that the defendant did not participate in the original taking of the same, you should find the defendant not guilty.”

A reading of the entire testimony shows evidence sufficient to be submitted to the jury and for that reason the motion for a directed verdict was properly overruled.

Since there is no material error in the proceedings of the court below the judgment of the conviction entered therein is affirmed. Affirmed.

For the petition, Mr. J. A. Burleigh. Contra, Mr. Charles J. Shelton and Mr. Max Wilson, District Attorney.