State v. Minnick , 54 Or. 86 ( 1909 )

Mr. Justice McBride

delivered the opinion of the court.

1. The first objection urged by appellant is that the indictment does not state facts sufficient to constitute a crime. There was no demurrer or motion to set aside the indictment, and if, taking the indictment as a whole, the essential elements constituting the offense of larceny can be found in it, the objection must be overruled.

2. It is substantially charged that the defendant took, carried, stole, led, and drove away two heifers, contrary to the statutes. The word “feloniously” is not used in connection with taking; but, if larceny is otherwise described, the omission of that word can only go to the question of the degree of the offense, since, if it was the intent of the pleader to charge simple larceny of property of less than the value of $35, it would be mere surplusage to charge that the act was feloniously committed. We think the words “take, steal, and drive away” are sufficient to describe larceny. Webster gives the primary meaning of the word “steal” as follows:

“To take and carry away feloniously; to take without right or leave, and with intent to keep wrongfully.”

When we say of a person, “He stole a horse,” we are not merely uttering a conclusion of law, but stating a fact in language that everybody, from the college professor to the common laborer, can understand. An indictment is definite enough if the facts are so stated as “to enable a person of common understanding to know what is intended.” Section 1303, B. & C. Comp. Under a similar statute the Supreme Court of California has held an indictment, almost identical with thé one in the case at bar, in this respect, to be sufficient to charge a felony. People v. Lopez, 90 Cal. 569 (27 Pac. 427).

3. The next question that arises is: What grade of larceny is described in the indictment? Section 1801, B. & C. Comp., is as follows:

“If any person shall commit the crime of larceny by stealing any horse, gelding, mare, mule, ass, jenny, or foal, bull, steer, cow, calf, hog, dog, or sheep, such person on conviction, shall be punished,”- etc.

It will be seen that the statute makes no mention of heifers in describing the bovine animals that are the subject of larceny, and it is objected that, as they are not specifically included, the larceny of a heifer is not grand larceny under the statute referred to. The prosecution contends that as a heifer is a young cow, and the indictment charges the defendant with stealing two heifers, it is equivalent to charging him with stealing two young cows. This is a question that occupied our ancient brethren of the bench, more than a century ago. In the case of The King v. Cook, 1 Leach (C. C.) 105, decided in 1774, wherein Cook was indicted for stealing a cow, it is stated: “The animal stolen was a female beast only two years and a half old, that had never had a calf; and a female beast of the cow kind, how old soever, if she has never had a calf, is always called an heifer.” The opinion of the twelve judges of the King’s bench was that the defendant could not be convicted, for the reason that the statute, upon which the indictment was founded, mentioned both “heifer” and “cow” in describing the several animals it was designed to protect, and therefore that one must be used in contradistinction to the other.. It will be observed that the reason given by the court for its decision in that” case does not exist in our statute, which, as before observed, does not mention heifers. In People v. Soto, 49 Cal. 67, an indictment for larceny of a cow was held to authorize a conviction, where the proof showed that defendant had stolen a heifer, and there are many decisions to that effect, and such is undoubtedly the law. Had the indictment in this case charged the defendant with stealing a cow, we have no doubt that a heifer, being a young cow, and therefore within that class of animals, would come within the terms of the indictment, on the theory that the greater includes the less; but we are of the opinion that, taking the indictment as a whole, it does not appear that there was an intent to indict the defendant for a felony. Under our constitution a defendant has a right “to demand the nature and cause of the accusation against him,” and this certainly includes the right to be informed whether the State intends to. prosecute him for a felony or for a misdemeanor. If the State intended to charge him with stealing cows, it should have said so in the indictment. Instead of this, the indictment omits all reference to the terminology of the statute, omits the word “feloniously” prescribed in the forms for indictments for grand larceny, and specifies the value of the animals taken, which is necessary in petty larceny, but wholly unnecessary in grand larceny, under this section. A labored construction of this indictment might bring it within the bare technical pale of grand larceny; but we would have to say that “heifers” meant “cows,” that “steal” and “feloniously took” meant the same thing, and make a new pleading by a forced and unnatural construction of the one upon which defendant was tried. We think a fair construction of the indictment is to say that it fully and clearly charges the defendant with simple larceny of property of the value of $30.

4. Objection was made on the trial to the giving by the court of instruction No. 6, in relation to a defendant being found in the recent possession of stolen property. It is contended that the instruction was not applicable because the property was not found in defendant’s possession, but in the possession of Gale, to whom he had sold it; but the word “found,” as used in instructions of this character, does not mean “found by the owner.” It simply means “discovered,” “traced to,” or shown to have been in defendant’s possession. In this case the property was found, by witness McDow, in defendant’s possession, in the winter of 1907, when he worked for him, and by witness Gale, when he purchased the property.

5. The term “recent possession” is merely relative and depends on all the circumstances of the case, and whether it is sufficiently recent to justify drawing an inference of guilt'from it is usually a question of fact for the jury.

6. We do not agree with counsel for appellant that the instruction assumes a theft or assumes that defendant’s explanation was unreasonable. The instruction was couched in the usual language used by the courts and left the facts as to the time and manner of defendant’s possession and the reasonableness of his explanation to the jury, where they properly belonged.

7. The other instructions, asked by defendant and refused, were, in our opinion, sufficiently covered by the general charge. They were not given in the language of defendant’s request; but the substance of those which were proper is there.

8. It is contended that the evidence was not sufficient to justify the verdict. We have carefully gone over it as it appears in the transcript, and cannot say that it was insufficient. To take it up and discuss it at length would occupy more space than would be profitable in this opinion, and would be of no interest to any one except the defendant, and wholly unprofitable to him.

9. After the defendant had rested his case, the prose* cuting witness was recalled in rebuttal, and asked concerning certain statements made to him by defendant, in regard to the cattle; among others, being an alleged statement, that the heifers had come up sucking his cows, and a foundation having been laid by putting an impeaching question to defendant on cross-examination and a denial by him of the alleged statements. This was error. The admissions sought to be proved, if actually made, were highly prejudicial to defendant, and were proper testimony in chief, and, if admissible at all, after defendant had rested, would only be as evidence to impeach the véracity of the witness, and its effect should have been limited by the court to that purpose. To admit it generally and for all purposes was error.

T. B. Johnson was called in rebuttal by the State and, as an expert, testified, generally, as to the apparent age of the calves, their actions, indicating that they had been raised on skim milk, and other circumstances which tended to support the theory of the prosecution in the case. The evidence given by him was in no sense rebuttal, but was a part of the State’s case in chief, and, under such circumstances, it was error to admit it. State v. Hunsaker, 16 Or. 497 (19 Pac. 605). We do not hold that the State may not, in a proper case and by leave of the court, obtained for that purpose, reopen its case and introduce evidence in chief, even after defendant has rested his case; but this was not done in the case at bar. The record shows that the testimony was offered simply in rebuttal. No reason was given, or showing made, to explain why it was not offered as part of the prosecutor’s case in chief. While in a civil case we would not feel inclined to interfere with the discretion of the court in the order of proof, unless there appeared a clear abuse of such discretion, we think a more strict rule should be invoked in a case where the liberty of a citizen is involved, and that this is not a case that comes under the principle announced by this court in Crosby v. Portland Ry. Co., 53 Or. 498 (101 Pac. 204).

For these errors the judgment of the lower court is reversed, and the case remanded, with directions to try the defendant for simple larceny. Reversed.