Miller v. Territory of Arizona

• Decision Date: 30 March 1905
• Docket Number: Criminal 185
• Citation: 80 P. 321,9 Ariz. 123
• Parties: FRANK MILLER, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent
• Court: Arizona Supreme Court

80 P. 321

9 Ariz. 123

FRANK MILLER, Defendant and Appellant, v. TERRITORY OF ARIZONA, Plaintiff and Respondent

Criminal No. 185

Supreme Court of Arizona

March 30, 1905

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Graham. Fletcher M. Doan Judge. Affirmed.

The facts are stated in the opinion.

Edwards & McFarland, and Alexander Buck, for Appellant.

Joseph H. Kibbey, Attorney-General, for Respondent.

OPINION

DAVIS, J.

-- The defendant was charged by the indictment in this case with "the crime of grand larceny, committed as follows: The said Frank Miller, on or about the 4th day of June, A.D 1903, and before the finding of this indictment, at the county of Graham, territory of Arizona, did willfully unlawfully, and feloniously, take, steal, and drive away one certain animal of the horse species, to wit, a female colt about one year old, the said female colt then and there being the personal property of Mary Spofford; contrary to the statutes in such case made and provided, and against the peace and dignity of the territory of Arizona." He was convicted of grand larceny, and sentenced to a term of seven years' imprisonment in the territorial prison. The appeal is from the judgment of conviction and from an order denying the defendant's motion for a new trial.

It is urged upon us that the verdict and judgment are not sustained by the evidence, -- first, because there was no proof on the trial of the value of the colt described in the indictment and second, because there was no evidence of any felonious intent. Section 444 of the Penal Code of this territory, as amended March 12, 1903, reads as follows: "Grand larceny is larceny committed in either of the following cases: (1) When the property taken is of the value exceeding fifty dollars. (2) When property is taken from the person of another. (3) When the property taken is a horse, mare, gelding, cow, steer, bull, calf, mule, jack, jenny, goat, sheep or hog, or any neat or horn cattle." It is contended by counsel for the appellant that a "colt" is not included within the specification of the third subdivision of this section, and that it is therefore not such property the stealing of which would constitute grand larceny, without regard to its value. But we do not think that the Texas cases relied upon to support this view are in point. Under a statute of that state making it a felony to steal "any horse, gelding, mare, colt, ass, or mule," it was held that an indictment for stealing a horse was not sustained by proof of the theft of a mare; for the statute having mentioned both "horse" and "mare" showed that the words were not intended by the legislature to be synonymous. Banks v. State, 28 Tex. 645. And it was held for the same reason that an indictment for the theft of a horse could not be sustained by proof that the animal stolen was a gelding. Jordt v. State, 31 Tex. 571, 98 Am. Dec. 550. So, too, it has been held by our own supreme court, under the statute which we are now considering, that an indictment charging the larceny of a steer is not supported by proof of the stealing of a cow. Martinez v. Territory, 5 Ariz. 55, 44 P. 1089. But these cases were upon questions of variance. In the case before us there is no claim of variance between the proof and the averment, but the question presented is purely one of statutory construction. Is the property mentioned in the indictment one of the domestic animals which is included within the designation of the statute? The term "horse," in its generic sense, embraces all the different varieties of that animal, however diversified by age, sex, or condition. In employing the words "horse, mare, gelding," the statute makes a classification as to sex, but no distinction based upon age. As a general rule, when a statute names adult animals only, the young are included under the same description. If the object of the law was to reach and punish criminals, it is not to be presumed that the legislature meant to hamper its execution by leaving in uncertainty such questions as to when a colt becomes a horse or a filly becomes a mare. In the case of People v....