State v. Albert
| Decision Date | 09 February 1926 |
| Citation | 242 P. 1116,117 Or. 179 |
| Parties | STATE v. ALBERT. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Yamhill County; Robert Tucker, Judge.
Morris L. Albert was convicted of larceny, and he appeals. Affirmed.
The defendant was convicted of the crime of larceny. The indictment upon which he was tried accused him of the theft of the following personal property belonging to one A. P Henningson:
1 ice machine, of the value of $150.
2 sets of boiler grates, of the value of $125.
1 steam engine, of the value of $150.
Doors and other parts of two sterilizers, of the value of $250.
Copper and copper coil, of the value of $75.
Water-pipe and fittings , of the value of $100.
He appeals, assigning error of the court in refusing to allow his motion for a directed verdict, in admitting the testimony of C. H. Fitzpatrick relating to the value of the property and in overruling defendant's objection to the action of the district attorney in his closing argument in reading from Exhibit D, being a certified record showing the defendant's former conviction of the crime of larceny.
John A Mears and Robert Mears, both of Portland (John A. Mears and Edwin G. Amme, both of Portland, on the brief), for appellant.
R. L. Conner, Dist. Atty., of McMinnville, for the State.
There is no contention here that the property is other than personalty in character. The indictment charges a single offense, and the case was tried upon the theory that the taking of the several pieces of personal property described therein constituted but one offense. This theory will be followed here. That the taking of the property constitutes a single larceny if committed pursuant to a single impulse and in execution of a general felonious scheme see 2 Wharton's Criminal Law (11th Ed.) § 1169; 1 McClain on Criminal Law, 584; 36 C.J. §§ 218, 219, "Larceny"; 7 L. R. A. (N. S.) 520, 523, note; 6 Ann. Cas. 736, note; 88 Am. St. Rep. 559.
The defendant does not deny that he transported from Newberg to his place of business in Portland the personal property alleged to have been stolen. Newberg is situate in Yamhill county, Or., 27 miles from Portland, where the defendant was engaged in the "junk business."
The property described in the indictment had been used, or was intended to be used, as equipment for a milk condensery plant situate at Newberg, which plant was the property of the above-named A. P. Henningson. The most of this property had been housed in a building that was burned a few weeks prior to the alleged theft and had been damaged by the fire. After the fire, the property remained on the site of the burned building, and was in the care of one C. H. Fitzpatrick, who operates a foundry and machine shop at Newberg, not far distant from the milk condensery plant.
The defendant contends that he was a good-faith purchaser of the property for value. He claims that a stranger by the name of J. Perry came to his place of business at Portland representing that he was the owner of the property, and stating that he desired to sell the same. Some time later, according to defendant's story, he and Perry met at Newberg and defendant paid Perry the sum of $82.50 in full consideration for the property. Thereafter, for nine several days, defendant was engaged in breaking up the property and transporting it to Portland from the site of the burned building, which, according to the testimony, was near a public thoroughfare and in plain view.
The defendant was accused of violating the provisions of section 1947, Oregon Laws, reading:
"If any person shall steal any goods or chattels, * * * which is the property of another, such person shall be deemed guilty of larceny. * * *"
He requested that the jury be instructed to return a verdict of not guilty, upon the theory that he was innocent of the crime of larceny. In this connection, we are called upon to determine the essential elements of the term "larceny." An eminent jurist, in discussing the meaning of that term, has written:
"It has been found by writers on the subject (larceny) to be impossible to give any short description of the offense which shall be accurate and at the same time embody the various technical distinctions which have been recognized in administering the law with reference to this crime." 1 McClain on Criminal Law, § 535.
A frequently cited short definition is that of Blackstone, who defines the term "larceny" as "the felonious taking and carrying away of the personal goods of another." 4 Bl. Com. 229. The term "felonious," as used in the definition of "larceny," is synonymous with "fraudulent."
The following definition from Rapalje, Larceny and Kindred Offenses, § 1, could have been invoked in support of defendant's theory:
In the case at bar, there was neither secrecy nor concealment in the taking and asportation of the property involved herein. It follows that, if Mr. Rapalje's definition of the term "larceny" is an accurate one, the defendant has solid grounds upon which to predicate his assignment of error based upon the court's refusal to instruct the jury to acquit him. For the doctrine that the larceny must have been committed secretly, the author relied upon the case of State v. Ledford, 67 N.C. 60. However, the doctrine enunciated by that case has been set aside by the same court that announced it. See State v. Powell, 103 N.C 424, 9 S.E. 627, 4 L. R. A. 291, 14 Am. St. Rep. 821; State v. Hill, 114 N.C. 780, 18 S.E. 971. Furthermore, other...
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State v. Cooper
...means proceeding from an evil heart or purpose, done with a deliberate intention of committing a crime); State v. Albert, 117 Or. 179, 242 P. 1116, 1117 (1926) (feloniously is synonymous with fraudulently). In Petition of Brown, 150 Mont. 483, 436 P.2d 693, 694 (1968), the court defined fel......
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State v. Callaghan
...the value of property cannot reasonably be ascertained, it shall be presumed to be an amount less than $200."See also State v. Albert, 117 Or. 179, 242 P. 1116 (1926).9 ORS 131.505(2), (3) provides:"As used in ORS 131.505 to 131.525, unless the context requires otherwise:"(2) When the same ......
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State v. Crace
...with his property is competent to testify to its value, as is a nonowner on whom the responsibility for repairs rests. State v. Albert, 117 Or. 179, 242 P. 1116 (1926); Levene v. City of Salem, 191 Or. 182, 229 P.2d 255 (1951). His testimony was relevant; although damage to personal propert......
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State v. Waterhouse
...must have some value in order to be considered property is rooted even deeper in this court's case law. See, e.g., State v. Albert, 117 Or. 179, 186, 242 P. 1116 (1926) (noting that “stolen property must have value in order to be the subject of larceny”); State v. Poyntz, 168 Or. 69, 71, 12......