Hughes v. Territory

• Decision Date: 11 February 1899
• Citation: 56 P. 708,8 Okla. 28,1899 OK 23
• Parties: HUGHES v. TERRITORY.
• Court: Oklahoma Supreme Court

56 P. 708

8 Okla. 28, 1899 OK 23

HUGHES v. TERRITORY.

Supreme Court of Oklahoma

February 11, 1899

Syllabus by the Court.

1. An instruction that: "The law presumes every man to be innocent, when accused of crime, until his guilt is made to appear, to the satisfaction of the jury, by competent evidence, beyond a reasonable doubt; and the burden is upon the territory in this case to establish, to your satisfaction, by competent evidence, beyond a reasonable doubt, the guilt of the accused of the crime charged in this indictment. While the law presumes every man to be innocent until his guilt is thus established, on the other hand it presumes every act which in itself is unlawful to have been criminally intended; and therefore it is not necessary in this case that the territory should establish the intent. If they do establish to your satisfaction, from the evidence beyond a reasonable doubt, that the defendant took this animal from the possession of Mr. Ajdrina, the law will presume that he did it with the intent to deprive the owner of his property therein,"--is incorrect. Intent, where one is indicted for stealing, is an issue of fact, which the jury must determine from all of the facts appearing upon the trial; and it is for the jury to say in each case as to whether or not the felonious intent to steal existed at the time the property was taken.

2. Section 1, art. 1, c. 20, Sess. Laws Okl. 1895, which provides "that if any person shall steal any stallion mare, colt, gelding, ridgeling, or any ass, genet or mule, or any bull, cow, calf, steer or stag, he shall be guilty of a felony, and, on conviction thereof, shall be punished by confinement in the territorial penitentiary for a term of not less than one nor more than ten years," creates a distinct and separate offense from larceny, as defined by the Statutes of Oklahoma of 1893, and does not make the stealing of the domestic animals named in such act grand larceny without regard to value.

Appeal from district court, Washita county; before Justice John C. Tarsney.

James Hughes was convicted of cattle stealing, and appeals. Reversed.

John I. Dille, C. O. Blake, and Smith & Baker, for appellant.

Harper S. Cunningham, Atty. Gen., and F. B. Duke, Co. Atty., for the Territory.

BURWELL J.

James Hughes was indicted, tried, and convicted in the district court of Washita county for the crime of stealing a cow, and was sentenced to serve a term in the territorial penitentiary. From this judgment and sentence he appealed to this court, and prays a reversal on account of alleged errors in the instructions.

The first instruction that we will consider is as follows: "The law presumes every man to be innocent, when accused of crime, until his guilt is made to appear, to the satisfaction of the jury, by competent evidence, beyond a reasonable doubt; and the burden is upon the territory in this case to establish, to your satisfaction, by competent evidence, beyond a reasonable doubt, the guilt of the accused of the crime charged in this indictment. While the law presumes every man to be innocent, until his guilt is thus established, on the other hand it presumes every act which in itself is unlawful to have been criminally intended; and therefore it is not necessary in this case that the territory should establish the intent. If they do establish to your satisfaction, from the evidence, beyond a reasonable doubt, that the defendant took this animal from the possession of Mr. Ajdrina, the law will presume that he did it with the intent to deprive the owner of his property therein." It is urged that this instruction is defective, and prejudicial to the defendant, in that it instructs the jury that intent need not be established; that it is presumed from an unlawful taking. The instruction may have been framed by the trial court upon the theory that intent was not an ingredient or element of the crime of which the defendant was being tried. In order that we may fully understand the issues presented, we will have to look to the language of the statute which creates the offense. It is as follows: "That if any person shall steal any stallion, mare, colt, gelding, ridgeling, or any ass, genet or mule, or any bull, cow, calf, steer or stag, he shall be guilty of a felony, and, on conviction thereof, shall be punished by confinement in the territorial penitentiary for a term of not less than one nor more than ten years." Sess. Laws Okl. 1895, c. 20, art. 1, § 1. The statute does not say one word about intent. Intent is nowhere expressed in the entire act. And this court has held that where a statute creates an offense, and does not make intent a necessary ingredient of such offense, it is unnecessary to plead or prove it. Garver v. Territory, 5 Okl. 342, 49 P. 470; Asher v. Territory (not yet officially reported) 54 P. 446. But does this offense fall within that rule? The statute says "that if any person shall steal any stallion," etc., "he shall be guilty of a felony, and, on conviction thereof, shall be punished by confinement in the territorial penitentiary," etc. What did the legislature mean when it used the word "steal"? There is nothing about the act in which the word appears to indicate that it was intended to place upon it a meaning different from that given to it in its ordinary and legal use. As this word is not defined by our statutes, we will have to look to the lexicographers and law writers for light as to its meaning. The American & English Encyclopedia of Law (volume 23, p. 555) says: "The word 'steal' has a uniform signification, and in common, as well as legal, parlance, means the felonious taking and carrying away of the personal goods of another." And. Law Dict.: "Steal: To commit larceny." Webster's International Dictionary defines the word thus: "Steal: To take and carry away feloniously; to take without right or leave, and with intent to keep feloniously; as to steal the personal goods of another; to practice, or be guilty of, theft; to commit larceny or theft." The same author defines "larceny" to be "the unlawful taking and carrying away of things personal, with intent to deprive the right owner of the same; theft." Blackstone uses the words "larceny," "steal" or "stealing," and "theft," interchangeably. American & English Encyclopedia of Law (volume 12, p. 761): "Larceny is the wrongful and fraudulent taking and carrying away, by any person, of the mere personal goods of another from any place, with a felonious intent to convert them to his (the taker's) use, and make them his property, without the consent of the owner. As a general rule, 'stealing' and 'larceny' are synonymous terms," etc. Bishop, in his work on Criminal Law (volume 1, p. 431), defines larceny to be "the taking and removing, by trespass, of personal property, which the trespasser knows to belong, either generally or specially, to another, with the intent to deprive such owner of his ownership therein, and, perhaps it should be added, for the sake of some advantage to the trespasser,--a proposition on which the decisions are not harmonious." 2 Russ. Crimes, p. 146: "In a late work of great learning and research, larceny is defined to be 'the wrongful or fraudulent taking and carrying away, by any person, of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner'; and in a case of recent occurrence, which was reserved for the consideration of the twelve judges, the learned judge who delivered the opinion said that the true meaning of larceny is 'the felonious taking the property of another, without his consent, and against his will, with intent to convert it to the use of the taker."' An examination of the authorities will show that "larceny" and "stealing," at common law, had the same meaning; and consequently stealing, as here defined, is the wrongful or fraudulent taking and removing of personal property, by trespass, with a felonious intent to deprive the owner thereof, and to convert the same to his (the taker's) own use. The crime of larceny, however, by our statutes, has been widened to a considerable extent, as will be shown by section 2371 of the 1893 Statutes, which is as follows: "Larceny is the taking of personal property, accomplished by fraud or stealth, and with intent to deprive another thereof." Section 2373, and other sections following, also throw some light upon the matter before us. We will therefore here quote them.

"Sec. 2373. Larceny is divided into two degrees; the first of which is termed grand larceny, the second petit larceny.

"Sec. 2374. Grand larceny is larceny committed in either of the following cases: First, when the property taken is of value exceeding twenty dollars. Second, when such property, although not of value exceeding twenty dollars in value, is taken from the person of another. Larceny in all other cases is petit larceny.

"Sec. 2375. Grand larceny is punishable by imprisonment in the territorial prison not to exceed five years.

"Sec. 2376. Petit larceny shall be punished by a fine of not less than ten dollars or more than one hundred dollars, or imprisonment in the county jail not to exceed thirty days, or by both such fine and imprisonment, at the discretion of the court."

These different sections define larceny, divide the crime into two different degrees, and provide the punishments therefor.

The contention of counsel for the appellant is that when the legislature said "that if any person shall steal any stallion, mare, colt," etc., "he shall be guilty of a felony," it meant the same as if it had said "that if any person shall steal any stallion, mare colt," etc., "he shall be deemed guilty of grand...