Kollenberger v. People , 9 Colo. 233 ( 1886 )

Elbert, J.

Section 65 of the Criminal Code (paragraph 753, Gen. St.) defines the crime of larceny, and is a general provision. Section 22 of “An act to provide for the branding, herding and care of stock” (sec. 3190, Gen. St.) is part of a special act. The effect of this last act is not to take a larceny of any of the animals therein named out of the provisions of the general act, but to leave it indictable under either act. To this extent the two provisions, are concurrent. All statutes in pari materia are to be construed together. Repeals are not favored. Whenever the earlier and the later provisions of the law can stand together, they will be permitted to do so. Bish. St. Crim. § 123 et seq.; id. § 161 et seq. There is no ground, therefore, for saying that the indictment in this case charges two distinct felonies under two different statutes. It is the common case’ of an indictment for larceny where various goods and chattels, the subject of a single larceny, are joined in one count, and where proof of the larceny of any one of them sustains the indictment. Such a count is not bad for duplicity. 1 Whart. Crim. Law, § 391.

The indictment is good under the general act, and follows its language so closely as to leave no doubt that it was drawn with reference to it. The words in the indictment, “the same being living animals,” may be re- , jected as surplusage. When animals are stolen alive, it is unnecessary to state them to be alive. The law presumes this, unless the contrary is stated. When dead, that fact must be stated. 1 Whart. Orim. Law, § 359. But one offense being charged, no case was presented requiring the prosecuting attorney to elect which offense he would prosecute.

The evidence upon the trial below was sufficient to warrant the jury in finding the defendants guilty of the larceny of the two calves mentioned in the indictment. Evidence of threats made after the confession of the defendant Huff was clearly inadmissible. Such threats could in nowise have influenced his confession prior thereto. Nor is the objection to the verdict, on the ground that it is general, well taken. A general verdict in such a case is “according to the course of the common law,” in conformity to which in this state all trials for criminal offenses are to be conducted, except where a different mode is pointed out. Sec. 212, Orim. Code (Gen. St. 960).

Whether the special act modifies the punishment prescribed by- the general act, whenever the subject-matter of the larceny comes within the provisions of the special act, need not be considered, for the reason that the terms of imprisonment to which the prisoners in this case were sentenced are within the shorter- term prescribed by the special act.

We find no substantial grounds for reversing the judgment of the court below, and 'it is accordingly affirmed.

Affirmed.