Peck v. State

• Decision Date: 24 June 1908
• Citation: 111 S.W. 1019
• Parties: PECK v. STATE.
• Court: Texas Court of Criminal Appeals

111 S.W. 1019

PECK v. STATE.

Court of Criminal Appeals of Texas.

June 24, 1908.

Appeal from District Court, Guadalupe County; M. Kennon, Judge.

Gus Peck was convicted of larceny, and appeals. Reversed and remanded.

P. E. Campbell and Dibrell & Mosheim, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The charging part of the indictment in this case is as follows: "Did then and there unlawfully and fraudulently take from the possession of Frank Pape one bale of lint cotton, and did then and there fraudulently take from the possession of William McKay one bale of lint cotton, each bale of said lint cotton then and there of the value of $50, the said two bales of cotton being then and there respectively the corporeal personal property of and belonging, one bale to the said Frank Pape and one bale to the said William McKay, and without the consent of the said Frank Pape and without the consent of the said William McKay, and without the consent of either of them, and with the intent then and there on the part of him, the said Gus Peck, to deprive the said Frank Pape and the said William McKay of the value of the same, and to appropriate it to the use and benefit of him, the said Gus Peck." Contention is made that this is duplicitous, in that it charges two separate and distinct offenses in the same count, there being no allegation of joint ownership, nor does the indictment allege that the said two bales of cotton were taken by the appellant at the same time and from the same place, so as to constitute the taking one and the same act. The court overruled these exceptions, and the ruling is presented as error. It has been held in many of the states, and perhaps very generally, that where property of different owners is taken at the same time and place, so as to constitute one act and one intent, that the indictment may allege these different takings in the same count, although the property may have been taken from different owners. But, as before stated, this taking must be such that it is the same act and the same intent at the same time and place. See Cody's Case, 31 Tex. Cr. R. 183, 20 S. W. 398; Harris' Case, 29 Tex. App. 101, 14 S. W. 390, 25 Am. St. Rep. 717; Barnes v. State, 43 Tex. Cr. R. 355, 65 S. W. 922. In Addison's Case, 3 Tex. App. 40, an indictment was sustained where property of different owners was taken at the same time, wherein the indictment charged that the taking "was then and there one and the same act, done at the same time and place, without the consent of the owner of said property," etc.

If this indictment had gone further, and charged that the two bales of cotton were taken at the same time and place, as was charged in Addison's Case, supra, it would have been sufficient; but under none of the authorities that have come under our observation has the indictment been held sufficient, unless the property was taken at the same time and place. The question came pointedly before the Supreme Court of Indiana in Joslyn's Case, 128 Ind. 160, 27 N. E. 492, 25 Am. St. Rep. 425. The indictment in Joslyn's Case was very similar to the one in the case at hand. The court said: "The rule is well settled that duplicity is fatal upon a motion to quash"—citing quite a number of authorities unnecessary here to recapitulate. Further, the court says: "Whether the pleading is double or not depends upon whether stealing the property of two different persons is prima facie one offense, or is two distinct offenses. We do not here controvert the doctrine that there may be cases where the larceny of property belonging to different persons may constitute a single offense, as, for instance, where it is all in one bundle or in one package, for it is unnecessary to do so, inasmuch as in such a case there is a single and indivisible act, and it may be a single crime. State v. Nelson, 29 Me. 329; 1 Hale, P. C. 531; Clem v. State, 42 Ind. 420, 13 Am. Rep. 369; Ben v. State, 22 Ala. 9, 58 Am. Dec. 234. If the information alleged that the property of the two owners was stolen at the same time and by the same act, so that it could be affirmed that there was a single larceny, we should, perhaps, be able to sustain the information. But the difficulty that arises cannot be solved by assuming that there was a single act, unless, as a matter of law, it can be adjudged that the larceny of property belonging to different owners, committed on the same day, constitutes a single crime; for there are no facts alleged tending to show that there was one indivisible offense. As there is only a single count, we are not required to decide whether the larceny of property belonging to two different persons can, as a matter of law, be considered to constitute one offense; for no more than one offense can be properly charged in one count on an indictment or information, although different offenses may be charged in different counts."

The common-law rule is thus stated by the Supreme Court of New Hampshire, in Nelson v. State, 8 N. H. 163: "If one steal at the same time goods of A. and also other goods of B., they are distinct larcenies"—citing 8 East, Crown Law, 521. The Indiana court, in Joslyn's Case, supra, sums up as follows: "Without going into an examination of the decisions of other courts in detail, we cite, as sustaining the doctrine that, unless the transaction is indivisible and the same, the offenses are distinct"—citing Vaughan v. Commonwealth, 2 Va. Cas. 273; Teat v. State, 53 Miss. 439, 24 Am. Rep. 708; Burns v. People, 1 Parker, Cr. R. (N. Y.) 182; People v. Saunders, 4 Parker, Cr. R. (N. Y.) 196; Regina v. Morris, 10 Cox, C. C. 480. In the case of State v. Elder, 65 Ind. 282, 32 Am. Rep. 69, it was said: "When the same facts constitute one or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution to a final judgment will not be a bar to the second, although the offenses were both committed at the same time and by the same act." The authorities sustaining...