State v. Allen ( 1955 )

COMPTON, Chief Justice

(dissenting).

The information, in one count, charged the larceny of $80 in money, and one .bottle of vodka. At the trial, ,for,the first time, it was established by the evidence-that there were separate takings at different times and from two different places, whereupon appellant moved for an election, which was denied. The motion was renewed and again denied at the close of the testimony for the state. The test is: “Where the property stolen from the same owner and from the same place by a series of acts, such acts constitute a single larceny, regardless of the time intervening between them, if the successive takings be pursuant to a single intent and design and in execution of a common fraudulent scheme.” As to such intent and design the evidence not only fails to show the existence thereof but the fact that appellant failed to take the money when he took the vodka, though he might have done so, makes it self-evident that he did not have such intent and design from the beginning. Obviously, the taking of the money was an afterthought. The motion to elect should have been sustained. It must be shown that the several acts of takings, though at different times, were made from the same place. To support this principle we only have to cite State v. Cox, the case relied on by the majority to sustain the judgment. A search of cases fails to disclose a single case to the contrary, and of all the cases on comparable facts, the majority opinion will stand alone. This will never do.

As a side light, we are dealing with a 19 year old boy whose liberty the jury tried to protect notwithstanding the ruling of the court. The jury recommended “all possible clemency” but the recommendation was not followed. He must now serve a term in the state prison. It is startling to lay down a rule so sweeping in character as to permit a jury to convict of numerous offenses committed at different times and at different places. Accordingly, I dissent.

KIKER, Justice.

I concur.