People of Territory of Utah v. Berlin

• Decision Date: 23 January 1894
• Citation: 9 Utah 383,35 P. 498
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. NELLIE BERLIN, APPELLANT

35 P. 498

9 Utah 383

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. NELLIE BERLIN, APPELLANT

Supreme Court of Utah

January 23, 1894

APPEAL from an order denying a new trial and a judgment of the district court of the fourth district, Hon. James A. Miner judge. The following is a full statement of the record:

The indictment by apt words charged the larceny by Nellie Berlin from Lena Wright of $ 100. The bill of exceptions set forth the evidence on the trial as follows:

On the trial of said cause the people gave testimony tending to show the larceny of the $ 100 as set forth in the indictment and tending to sustain such charge, and the defendant introduced testimony in defense of the charge set forth in the indictment by the testimony of the defendant tending to show and prove that on and prior to the 19th day of February 1893, the prosecuting witness Lena Wright entered into an agreement with the defendant and one Gilson whereby the said Gilson and defendant were to poison and kill one Mrs. Morris of Ogden City, for which the prosecuting witness was to pay for said act of killing the sum of $ 100. The testimony of the defense tended to show that this agreement was entered into between the prosecuting witness Lena Wright and said defendant: that on the 19th day of February, 1893, the defendant and Gilson for the purpose of deceiving Lena Wright and obtaining the $ 100 caused to be published in one of the Ogden daily papers a statement to the effect that Mrs. Morris had died of heart disease.

"The defendant testified that this paper with the notice of the death of Mrs. Morris was taken by the defendant and shown to the prosecuting witness, who delivered the $ 100 to the defendant pursuant to the agreement, believing that the said Mrs. Morris was dead. The prosecution offered testimony tending to contradict the above testimony. The testimony also tended to show that the prosecuting witness, Lena Wright and one Charles Morris had been criminally intimate and it had become notorious, and also that Mrs. Wright, the prosecuting witness, had requested the defendant several times to aid her in killing the said Mrs. Morris for the purpose of getting her out of the way. After the above testimony tending to show the above facts, the defendant offered to prove by the defendant Terrell, that the prosecuting witness, prior to time of the alleged offense, had tried to induce him, the said Terrell, to poison Mrs. Morris, for which the prosecuting witness would pay him $ 100, which he refused to accept. This testimony was rejected and the defendant excepted. Defendant also testified that they obtained the $ 100 as aforesaid, and she gave $ 75 to Gilson and kept the balance; that she entered into this scheme with Gilson to get the money from Lena Wright. Thereafter during the trial the defense submitted testimony tending to show that agreement had been made. The prosecution offered testimony tending to contradict defendant's proof."

The exception to the charge as given was general to the whole charge and pointed out no specific part; it was as follows "To the giving of the said instructions, and to the giving of each of them the defendant then and there excepted at the time as follows: We except to each and every one of the instructions given by the court to the jury."

No exception whatever appeared in the record to the refusal to give the instructions requested. They are therefore not inserted.

The whole charge of the court as given was as follows:

"This case presents a peculiar combination. The defendant is charged with the larceny of $ 100 of money or property of Lena Wright. You have heard the indictment read and know what it contains. Our statute defines larceny to be as follows: Larceny is the felonious stealing, taking, carrying, leading or driving away of the personal property of another. It is divided into two degrees, grand and petit. (Grand larceny was defined in the terms of the statute). Therefore if you find the defendant guilty and find that the property exceeded the value of $ 50, she would be guilty of grand larceny. If you find the property to be of less value than $ 50, that is $ 50 or less, then the crime would be petit larceny. All that, of course, is dependent upon the proof in the case.

"Larceny is the wrongful or fraudulent taking and carrying away by any person of the personal goods of another, from any place, with a felonious intent to convert them to the use of the offender and make them his own property, without the consent of the owner. The word felonious being explained to mean that there is no color of right or excuse for the act; the intent must be to deprive the owner, not temporarily, but permanently, of his property. A fraudulent taking with intent wholly to deprive the owner of his property or with intent to destroy it is sufficient, if the object be to effect some supposed advantage, either to the party committing the offense or to a third person.

"But according to all definitions, in order to constitute the offense, there must be; 1st, a taking, 2d, a carrying away; 3d, the taking and carrying away must be with a felonious intent; 4th, it must be of the personal goods of another; 5th, and without the consent or against the will of the other. As I have said, there must be a taking proven, either actual or constructive; actual where the goods are actually taken out of the owner's possession against his will, or without his consent; it is constructive where the goods are obtained from the owner by fraud with intent to steal them, or where he, in fact, delivers the goods but still in law retains the title to them.

"There must be an actual taking or severance of the thing from the possession of the owner, for every larceny includes a trespass; if the party be not guilty of a trespass in taking the goods, he cannot be guilty of a felony in carrying them away. If the jury find that the defendant entered into an unlawful combination and conspiracy with Gilson to fraudulently obtain the $ 100 from Mrs. Wright, and that in pursuance of such conspiracy, which was unknown to Mrs. Wright at the time, Mrs. Wright was led to believe that Gilson or the defendant, or both, would take the life of Mrs. Morris in consideration of the payment of the $ 100 to Gilson or to the defendant by Mrs. Wright, such sum to be paid when the killing took place, and you find that the defendant induced Mrs. Wright to believe that such killing had taken place and that therefore the $ 100 was due to be paid to Gilson from her, and you find that the $ 100 was obtained by the defendant from Mrs. Wright in reliance upon the fact that the defendant or Gilson, or both, had killed Mrs. Morris, and that the killing had in fact not taken place, and you further find that the $ 100 was obtained from Mrs. Wright by the defendant by fraud, deceit and trickery in pursuance of such previous conspiracy, with intention on the part of the defendant at the time to steal the $ 100 and appropriate it to her own use or to the use of Gilson and to deprive Mrs. Wright wholly of the possession and ownership thereof, without her consent, then these facts when established are sufficient to constitute the crime of larceny. The fraud in obtaining the possession of the money in such a case, if shown, takes the place of the trespass which is necessary to be shown, and if all the facts justify a felonious intent on the part of the defendant, the conversion of the money to defendant's own use is felonious.

"But if the money was delivered to the defendant by the owner's consent in pursuance of a previous agreement, or if it was voluntarily delivered to defendant, the owner intending to part with possession and title to it, then there is no larceny, even if fraud is established in obtaining it. You will note the distinction in the instructions, consider all the evidence, peculiar as it may be."

Then followed instructions upon the subject of reasonable doubt. The jury went out and then returned for further instructions and the whole charge was read over to them again.

Affirmed.

Messrs. Lessinger and Beckwith, for the appellant. No brief on file.

Mr. W. L. Maginnis, Assistant U.S. Attorney, for the respondent. No brief on file.

ZANE, C. J. BARTCH, J., concurred. SMITH, J., dissenting.

OPINION

ZANE, C. J.:

The defendant was convicted of grand larceny. The only question presented is whether or not the evidence justifies the verdict because the exception to the charge is wholly insufficient, On the trial the prosecution introduced evidence tending to prove that she stole $ 100 from Lena Wright, and the defendant introduced evidence tending to prove that she entered into a conspiracy with Lena Wright to kill one Mrs. Morris, for the consideration of $ 100, and that she caused a false statement to be published in a newspaper to the effect that Mrs. Morris had died of heart disease, which she showed to Mrs. Wright who relied upon the statement and paid her the $ 100 alleged to have been stolen. The prosecution introduced evidence tending to rebut this evidence offered by the defendant. The court charged the jury and the defendant excepted generally to the charge, but excepted to no particular part. And, although we notice the point because counsel have argued it in their briefs, and have overlooked the fact that the exception was not specific, we do not wish to be understood as saying that the charge can be reviewed on such an exception.

The jurors might have understood from one part of the charge without the qualification that followed, that they might find the defendant guilty of larceny, though Mrs. Wright paid her $ 100 intending to transfer both the possession and title, if such transfer was induced by her fraudulent representation and...