In re Pratt

• Decision Date: 30 October 1893
• Parties: In re PRATT.
• Court: Colorado Supreme Court

34 P. 680

19 Colo. 138

In re PRATT.

Supreme Court of Colorado

October 30, 1893

Original application of James D. Pratt for habeas corpus. Writ dismissed.

A.F Hollenbeck, for petitioner. The Attorney General and H.T Sale, for the People.

PER CURIAM.

The petitioner was indicted on the 4th day of June, 1891 in the district court, sitting in and for Baca county, for feloniously stealing two steers, on the 20th day of November 1889. Upon the trial of the cause, on June 10, 1893, he was found guilty of larceny in manner and form as charged in the indictment, and the value of the property stolen was found to be $16. He was thereupon sentenced by the court to hard labor in the penitentiary for the term of six months. He alleges that such sentence was void, and his imprisonment thereunder illegal, because not authorized by any law of the state in force at the time the offense was committed; that under section 753 of the General Statutes of 1883, being section 1230 of Mills' Annotated Statutes, to constitute grand larceny, punishable by imprisonment in the penitentiary, the value of the property stolen must exceed the sum of $20, and that the sentence could not be imposed under section 3190 of the General Statutes, (section 4271 of Mills' Annotated Statutes,) because the place of imprisonment is not therein designated; and under the decision of this court in the case of Brooks v. People, 14 Colo. 413, 24 P. 553, he should have been confined in the county jail. It was held in the case of Kollenberger v People, 9 Colo. 233, 11 P. 101, that these sections were concurrent, and that the crime of larceny of live stock was indictable and punishable under either. While the crime as charged in the indictment in this case is within the purview and language of both of these sections, yet the sentence was manifestly imposed under the latter section, which is as follows: "Any person who shall steal, embezzle, * * * drive, lead, or ride away * * * any neat cattle, horse, * * * shall be deemed guilty of a felony, and on conviction thereof in any court of competent jurisdiction shall be punished by imprisonment not exceeding six years, or by fine not exceeding five thousand (5,000) dollars, at the discretion of the court." This section is clearly not amenable to the objection relied on by counsel for petitioner. While it does not in express terms provide the place of imprisonment, yet in effect, it does so by providing...