State v. Douglas

The facts sufficiently appear in the opinion. The appellant was charged with the crime of grand larceny, was tried and convicted thereof, and sentenced to imprisonment in the state prison for a term of ten years. He appeals from the judgment and the order denying his motion for a new trial.

1. He complains that the court erred in overruling his demurrer to the indictment. The specific objection made by the demurrer is that the indictment charges four distinct larcenies. At the proper time he asked the court that the state be directed to elect as to which of the offenses charged he should be placed upon his trial. This request was refused, and the refusal of the court is assigned as error. As the action of the court in overruling the demurrer and in refusing to direct the state to elect involves the same question, the assignments may be properly considered together.

The indictment charges that appellant, on or about the 26th day of May, 1900, at the county of Churchill, State of Nevada, unlawfully and feloniously did steal, take, and drive away a particularly described steer, of certain alleged value, the property of Henry Thelan; certain other particularly described cattle, of certain alleged value, the property of Lee Wightman; certain other particularly described cattle, of certain alleged value, the property of W. F. Kaiser; and certain other particularly described cattle, of certain alleged value, the property of J. M. Douglass.

If the language used in this indictment charges four distinct larcenies, then, under the provisions of our criminal practice act (Comp. Laws, 4203), appellant's contention is tenable, and the demurrer should have been sustained, and the request for the election should have been granted.

This court has intimated that the stealing of property of different persons at the same time and place, and by the same act, may be prosecuted, at the pleasure of the state, as one offense or several distinct offenses. (State v. Lambert,9 Nev. 324.)

While the authorities bearing upon the rule that such larceny may be prosecuted as one offense are not uniform, yet we are of the opinion that the weight of authority, considered with reference to reason and with the statute defining larceny, is against the claim of appellant.

In a strong and well-reasoned case, in which a large number of authorities are collected and cited against appellant's contention, the Supreme Court of Indiana uses the following language, which we quote with approval: "We recognize no good reason to depart from what may be considered the great current of authority, and hold the pleading in question bad, when it can reasonably be said that it discloses that the larceny complained of was but a single act or transaction in violation of the law against larceny, although the property which was the subject of the crime belonged to several different persons. The particular ownership, as charged in the pleading, of the money stolen, did not give character to the act of stealing, but was merely a part of the description of the particular crime charged to have been committed. The information, primafacie, under the circumstances, can be said to charge but one offense against the state, and is not open to the objection that it is bad for duplicity." (Furnace v. State, (Ind.Sup.) 54 N.E. 441.)

This is a later case than Joslyn v. State,128 Ind. 160, cited by appellant, and overrules that case.

It seems to us that the language used in the indictment in the case at bar, charging the defendant, at the same time and place, with having stolen the property of different persons, charges but one offense, one act or transaction in violation of law, and fills the measure required by the sixth subdivision of Section 243 of the criminal practice act (Comp. Laws, 4208), by which an indictment is declared sufficient when the act charged is clearly and distinctly set forth in ordinary and concise language without repetition, and in such manner as to enable a person of common understanding to know what is intended. Not only does the indictment sufficiently charge one act of larceny by which the property of different persons was taken, but the evidence submitted to the jury shows that there was but one offense committed. The witness King, to whom appellant made his confession while still in possession of part of the stolen property, testified that appellant stated to him that he rode down in the night and sorted out of a band of cattle the eighteen head, and drove them away.

2. During the progress of the trial one Joe King was called as a witness, and testified to a confession made to him by appellant. The appellant asked the court to strike the testimony given by King from the record, for the reason that it appeared that King was a coconspirator in the commission of the crime charged. The refusal of the court to strike out is assigned as error. The record does not show that the witness was a "coconspirator," within the meaning of that term. He did not participate in the criminal act, and did not suggest or plan it. It does show that the appellant planned and committed the crime. It further shows that he suggested the commission of the crime to the witness, who had, in anticipation of some such suggestion, been appointed a deputy sheriff by the sheriff of Lyon county, and was acting as such, without the knowledge of the appellant, when appellant invited him to join in the commission of the crime of larceny; that the witness consented to join in the offense, but did not, and kept his principal, the sheriff, fully informed as to what was transpiring between him and appellant.

It also shows that all that was done or said by the witness was without criminal purpose or intent. He was not, under the facts shown, either a coconspirator or accomplice, and his evidence should not be treated as such. (Campbell v. Com., 84 Pa. 187;Wright v. State, 7 Tex. App. 574;People v. Farrell, 30 Cal. 316.)

But, if it were even shown or admitted that the witness King was an accomplice, that fact does not render him incompetent to give testimony under our statute (Comp. Laws, 4667).

The weight to be given to his testimony is a question for the jury, under proper instructions, subject, however, to the statutory restriction (Comp. Laws, 4330) that a conviction cannot be had upon the uncorroborated testimony of such accomplice. It was not error, therefore, to refuse to strike out the testimony of King.

3. The appellant requested the court to instruct the jury that the officers of the law should never encourage and assist parties to commit crime, in order to arrest and have them punished for so doing; that it is their duty to prevent crime, instead of lending aid and encouragement in carrying it out, and in this case the officers of the law, instead of laying a plan to have defendant commit the crime as charged, if the jury believed from the evidence that they did lay such plan, should have taken all steps in their power to prevent the commission of the offense. The refusal of the court to give this instruction is assigned as error.

It is settled by the decisions of this court that it is not error to refuse instructions, if there is no evidence before the jury making them applicable, even though such instructions contained correct statements of the principles of the law. (State v. Waterman, 1 Nev. 543;State v. Squaires, 2 Nev. 226;State v. Ah Loi, 5 Nev. 99.)

It is sufficient, without passing upon the correctness of the rule of law contained in the instruction asked, to say that this instruction was not applicable to the facts of the case at bar.

We believe the evidence shows conclusively that neither the sheriff nor his deputy suggested the commission of the crime. It further shows that neither of these officers assisted in the commission of the crime, and that whatever plan was laid for the commission of the theft was solely and exclusively the plan of the appellant, and by him alone carried into effect.

4. Whether or not there is any merit in the claim that the court erred in refusing to give the instruction relating to the testimony of detectives is not before us. It appears from the action of the court in refusing to give the instruction that it had been given in substance, and the record fails to affirmatively show that such was not the fact. Whatever instructions were given by the court are not properly brought here, and under the rule announced inState v. Maker, 25 Nev. 465, there is nothing for us to consider.

5. We cannot consider the objections to instructions given by the court. These instructions, not having been embodied in the bill of exceptions, are no part of the record. (State v. Forsha, 8 Nev. 137;State v. Burns, 8 Nev. 251;State v. Rover, 11 Nev. 343;State v. Maher, 25 Nev. 465.)

No error having been shown, the judgment and order will be affirmed.