Bradley v. People

• Decision Date: 29 January 1886
• Citation: 8 Colo. 599,9 P. 783
• Parties: BRADLEY v. PEOPLE.
• Court: Colorado Supreme Court

9 P. 783

8 Colo. 599

BRADLEY v. PEOPLE.

Supreme Court of Colorado

January 29, 1886

Error to district court, Park county.

The plaintiff in error was tried and convicted in the district court of Park county, and sentenced to imprisonment in the penitentiary for the term of one year, on a charge preferred under section 6 of an act entitled 'An act to provide for the branding, herding, and care of stock, and to repeal certain acts in relation thereto.' The section reads as follows:

'If any person shall brand or mark, or cause to be branded or marked, with his, her, or their brand, or any other not the recorded brand of the owner, any animal being the property of another, or shall efface, deface, or obliterate any brand or mark upon any animal, any such person so offending shall be deemed guilty of larceny, and on conviction thereof shall be confined in the penitentiary not less than one year nor more than five, as the court may direct, and shall also be liable to the owner thereof for three times the value of the animal so branded or marked, or upon which the brand or mark shall have been so effaced, defaced, or obliterated; and in no case shall the payment of the forfeiture herein mentioned entitle the person so branding effacing, defacing, or obliterating a brand to the property in the animal so branded, or upon which the brand was effaced, defaced, or obliterated, but such animal shall be surrendered to the proper owner.' Gen. Laws, 927.

The repealed section reads as follows:

'If any person shall willfully brand or mark with his own brand any animal, such as mentioned in the first section, being the property of another, or shall willfully efface, deface, or obliterate any mark or brand upon any such animal, with intent to convert such animal to his own use, or to prevent the owner thereof from recovering the same, every such person so offending shall be deemed guilty of larceny.' Section 8, c. 58, Rev. St. 1868.

Upon the trial of the cause the judge gave, among others, the following instruction:

'Under the statute upon which this indictment is founded the presence of a criminal intent is immaterial; the law presumes criminal negligence from the act. If you find from the evidence, beyond a reasonable doubt, the facts of branding or marking by defendant, or the effacing, defacing, or obliterating of the brand 'I. C.' by him, and the venue and ownership in accordance with the foregoing instruction, he is guilty under the statute of the offense charged in the indictment, although it may appear possible that he so branded or marked, or caused to be branded or marked, the animal or animals described, or effaced, defaced or obliterated the brand 'I. C.' on the same, through inadvertence or mistake.'

This instruction is assigned for error.

Wilkin & Bailey and R. D. Thompson, for plaintiff in error.

D. H. Urmy, for the People.

ELBERT J.

There is nothing in the language of the statute to warrant the charge that 'the law presumes criminal negligence from the act.' A reference to the statute will verify this. Independent of statute, in some cases, negligence may be so gross as to justify the inference of criminal intent, and may be regarded, within limits, as supplying its place. But this is upon the proposition that criminal intent is a requisite, and that gross negligence is substantially the same thing. Eliminating this part of the charge from the instructions, two associated but distinct propositions remain to be considered.

At the date of the passage of the statute under consideration, as now, the Criminal Code defined larceny as 'being the felonious stealing, taking, carrying, leading, riding, or driving away the personal goods of another.' This is a modification of the common-law definition, which in addition gives 'conversion to the taker's own use,' and 'without the consent of the owner,' as requisites. If the construction placed upon section 6 of this statute by the court below is to be regarded as correct, then the legislature have declared that to be larceny which wants all the constitutent elements of larceny as defined either by our Criminal Code or the common law. This is drifting widely from first principles. 'Crime proceeds only from a criminal mind. The doctrine which requires an evil intent lies at the foundation of public justice.' Not only this; the chief ideas upon which the state is founded are the safety and liberty of its citizens. The safety of property is important, it is true, but secondary. A statute enacted in the interest of personal property by the law-making power, denouncing certain acts as larceny under heavy penalties of fine and imprisonment, and declaring 'criminal intent immaterial' and 'mistake no defense,' would justly excite surprise, if nothing more.

A rule of interpretation respecting words in the repealed law omitted in the new law, and a line of authorities under statutes making an act indictable, irrespective of intent, in which mistake is held as 'no defense,' it is claimed justify the conclusion of the court below. From the fact that the word 'willfully,' which occurred in the repealed section, is omitted from the new section, and no equivalent word supplied, it is concluded that under the new law 'criminal intent is immaterial,' and that such was the legislative intention. It is to be observed in this connection, by the application of the same rule, it would...