Long v. State

• Decision Date: 02 February 1907
• Citation: 88 P. 617,15 Wyo. 262
• Parties: LONG v. STATE
• Court: Wyoming Supreme Court

88 P. 617

15 Wyo. 262

LONG v. STATE

Supreme Court of Wyoming

February 2, 1907

ERROR to the District Court, Converse County, HON. RODERICK N MATSON, Judge.

J. W Long was convicted of grand larceny, and prosecuted error. The material facts are stated in the opinion.

Affirmed.

Allen G. Fisher, for plaintiff in error.

The verdict is uncertain as to value. It is insufficient because general and not responding to each count in the information. (Casey v. State, 20 Neb. 149; Wilson v State, 20 O., 26; Hurley v. State, 6 O., 404; State v. Sutton, 4 Gill, 494; Marshall v. Comm., 5 Gratt., 663; State v. Redman, 17 Iowa 329; Setvester v. U.S. 170 U.S. 264; G. & W. on New Trials, 140.) The instructions failed to discuss all the issues and presumptions of law applicable. (People v. DeFore, 64 Mich. 693.) One person cannot be guilty of both larceny and receiving stolen goods as to the same property. (Larkin v. State, 49 N. H., 41; George v. State, 59 Neb. 165.) The instruction as to reasonable doubt was erroneous, stating that it is a doubt for which a reason can be given. The phrase thus used is misleading. (State v. Sauer, 38 Minn. 438; Burt v. State, 48 Am. St. 574.) Rebutting evidence by witnesses who were members of the regular jury panel was error, and, though stricken out, was prejudicial, as no instructions were given in relation to it. (People v. Molyneaux, 168 N.Y. 264; Ferguson v. State (Neb.), 100 N.W. 801; Nickolizac v. State, 105 N.W. 897; Becker v. Cain (N. D.), 80 N.W. 805; Dunn v. State, 162 Ind. 174; People v. Pinkerton, 79 Mich. 110; People v. Howard, 73 Mich. 10; People v. Parmelee, 112 Mich. 296.) When an instruction undertakes to define a crime it should contain every essential ingredient, otherwise it is faulty. (Barnes v. State, 40 Neb. 545; Thompson v. People, 4 Neb. 524; Dobson v. State, 61 Neb. 584.) In larceny if the instruction fails to state that the taking must be with felonious intent it is erroneous.

W. E. Mullen, Attorney General, for the State.

A general statement in the brief of a plaintiff in error that none of the assignments of error are abandoned, is insufficient under rule 14 to reserve the benefit of assignments not specifically referred to with the page and portion of the record where the question arises pointed out. (Bank v. Ludvigsen, 8 Wyo. 230; Imp. Co. v. Bradley, 6 Wyo. 177.) The rebutting evidence complained of was struck out and the jury directed to disregard it, and how it could be prejudicial is not clear, in view of the issues raised by the evidence. A verdict based on conflicting evidence will not be disturbed. (Edwards v. Murray, 5 Wyo. 153.) The finding of value in the verdict refers to the date of the offense. (Cook v. Ter., 3 Wyo. 116.) The general verdict was sufficient. (Nelson v. State, 52 Wis. 534; Gallott v. U.S. 87 F. 446; Love v. People, 160 Ill. 501; Rosson v. State, 37 Tex. Cr., 37; Cannon v. State, 75 Miss. 364; Bergdahl v. People (Colo.), 61 P. 228.)

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

The plaintiff in error was tried, convicted and sentenced to a term in the penitentiary by the District Court of Converse County, and he brings the case here on error. The information upon which the plaintiff in error was convicted was in two counts. The first count charged the larceny of one head of neat cattle of the value of forty dollars of the property of Henry Trollope. The second count charged the felonious receiving of said property knowing the same to have been stolen. The verdict of the jury is in the following language, viz.:

"We, the jury in the above entitled case, do find the defendant guilty in the manner and form as charged in the information, and we find the value of the property stolen to have been $ 35.00." It is contended that this verdict is ambiguous, uncertain and multifarious. It is insisted that the verdict does not find the value of the property at the time it is alleged to have been stolen. But we do not so construe the verdict. The jury found that the property had been stolen and its value to have been $ 35.00. This evidently refers to the time when it was stolen and is the only reasonable construction that can be put on the language of the verdict. It is also urged that the verdict is general and does not specify upon which count they found him guilty. The prosecution in this case was under the provisions of Sec. 4988, R. S. 1899, which is as follows: "Whoever steals any horse, mule or neat cattle, of the value of five dollars or upwards; or receives, buys or conceals any such horse, mule or neat cattle which shall have been stolen, knowing the same to have been stolen, shall be imprisoned in the penitentiary not more than ten years, or may be imprisoned in the county jail not more than six months." The penalty is the same whether the conviction be for stealing, or for receiving stolen cattle, knowing them to have been stolen. And in this case the sentence imposed was less than the maximum for either offense. An examination of the record discloses that the case was tried solely upon the charge of larceny as contained in the first count of the information. The evidence of both the prosecution and the defense was confined to that charge, and the instructions given by the court to the jury were upon that charge only. In its first instruction given to the jury the court told the jury in substance that, in order to warrant a conviction of the defendant, every material allegation contained in the information must be established by the prosecution to the minds of the jurors beyond a reasonable doubt, and then stated to the jury what these material allegations were; and confined them strictly to the charge of larceny. Nothing whatever is said about the charge of receiving stolen cattle. It affirmatively appears from the record that no exception was taken to this instruction by the defendant, nor was the court requested to instruct on the charge of receiving stolen property as charged in the second count of the information.

Under these circumstances it is difficult to see how it can be said that it is uncertain as to the offense of which the jury found the defendant guilty. The verdict is in form a proper verdict on the charge of larceny and not in form on the other charge of receiving stolen property. (Bergdahl v People, 27 Colo. 302, 61 P. 228 (Colo. 1900.) It responds to the issues submitted by the court in its instructions, and to the evidence introduced upon the trial; and the judgment as entered by the court is for the crime of larceny. The judgment contains the following: "It is therefore considered by the court that the defendant, J. W. Long, is guilty of the crime of stealing live stock of the value of $ 35.00." While the decisions are not entirely uniform as to the sufficiency of a general verdict in a case where two or more offenses are charged in the indictment or information, yet we think the weight of authority and the better reasoning is in favor of the sufficiency of such a verdict where the offenses charged are of the same character and grade and arise out of the same transaction. In State v. Long, 52 N.C. 24, the indictment was in three counts. The first count charged the unlawful sale of liquor to one Luke, a negro slave. The second count charged the unlawful trading with Luke between sunset and sunrise. The third count charged the unlawful delivery of liquor to Luke without his having written permission. The verdict was general, and the court said: "Though there are three counts in the bill of indictment, the testimony was offered to the second only, and therefore the verdict, though general, must be presumed to have been given on that alone." In Frasier v. State, 5 Mo. 536, the indictment contained four counts; and it was said by Napton, J.: "The offenses charged are all of the same nature, founded on the same section of the statute, and upon which the same judgment could have been entered. (Archibald's Evi. P. C., 62; 1 Chit. Cr. Law 249.) If the evidence sustained any of the counts, the jury had a right to find a general verdict." In Nelson v. State, 52 Wis. 534, 9 N.W. 388, a case in which the defendant was charged on two counts, one for larceny and the other for receiving stolen property, the court said: "There was a general verdict. Our statute provides that a person who receives, conceals, or aids in concealing, stolen property, knowing the same to have been stolen, shall receive the same punishment as is prescribed for the stealing of such property. * * * In view of this statute, perhaps it was not necessary for the jury to state in their verdict under which count in the information they found the plaintiff in error guilty. Upon the whole record, we think the judgment of the municipal court must be affirmed." And in Grottkau v. State, 70 Wis. 462, 36 N.W. 31, in referring to the Nelson case, the court said: "It was in effect held that where one is charged in separate counts with different crimes, each of which was subject to the same punishment, a general verdict of guilty was sufficient, without specifying the count to which it related." In Langford v. People, 134 Ill. 444, 25 N.E. 1009, the court quotes with approval from Lyons v. People, 68 Ill. 271, the following: "It necessarily follows, that where an indictment, as in this case, in one count charges the breaking and entering of a car with intent to steal, and in another count a stealing, at the same time, in the car which was so broken and entered, and the defendant is found guilty generally, and a punishment imposed which is by law authorized to be inflicted for the...