State v. Fairburn , 1959 Mont. LEXIS 48 ( 1959 )

MR. JUSTICE BOTTOMLY,

dissenting:

I dissent.

In my opinion the information filed in this ease and which was the basis for this prosecution does not allege the facts essential to conform with the requisite statute, R.C.M. 1947, sec. 94-2701, in that, according to the testimony of the state’s witnesses, neither Steve Fowler nor the Comptometer Company of Spokane, Washington, were the true owner or owners of the money in question as stated and alleged in the information. The state’s evidence show that the. true owner was the Comptometer Corporation of Algonquin, Illinois, and not Steve Fowler nor the Comptometer Company of Spokane, Washington. See State v. Wallin, 60 Mont. 332, 340, 199 Pac. 285.

To- constitute the crime of larceny, the intent which accompanies the act of taking must be the criminal intent to deprive the true owner -of -his property, not temporarily but permanently. The test of law to be applied to these circumstances for the purpose of determining the ultimate facts as to the guilt or innocence of the accused is: Did the person intend to permanently deprive the true owner of his property? If he did nót intend to do so there is no felonious intent, and his act constitutes but a civil trespass.

I would reverse the judgment and remand the cause with directions to dismiss the information and discharge the defendant.