State v. Barber

• Citation: 96 P. 116,15 Idaho 96
• Parties: STATE, Appellant, v. M. M. BARBER, Respondent
• Decision Date: 06 June 1908
• Court: Idaho Supreme Court

96 P. 116

15 Idaho 96

STATE, Appellant, v. M. M. BARBER, Respondent

Supreme Court of Idaho

June 6, 1908

LARCENY-DIFFERENT DEGREES OF-NEW TRIAL-GRANTING OF-DISCRETION OF JUDGE OR COURT.

1. Under the provisions of sec. 7100, Rev. Stat., the different degrees of larceny are to be determined by the value and kind of property disposed of by the mortgagor under the provisions of said section.

2. Under the provisions of said sec. 7100, Rev. Stat., the fact that the mortgagee has received full payment of the mortgage debt after the sale of the mortgaged property will not necessarily prevent the prosecution of the mortgagor for the crime of larceny for wilfully selling mortgaged property.

3. Where a motion for a new trial in a criminal case is granted the action of the court will be sustained on appeal unless it appears that there was a clear abuse of discretion in granting such new trial.

4. The trial court or judge, granting a new trial, ought to specify in the order the ground on which the new trial is granted.

(Syllabus by the court.)

APPEAL from the District Court of Sixth Judicial District for Fremont County. Hon. J. M. Stevens, Judge.

Defendant was convicted of grand larceny for selling mortgaged personal property, and motion for a new trial was granted by the trial judge. Affirmed.

Order sustained.

W. H Holden, for Respondent.

The mortgagee is fully protected under the law from any financial loss by reason of the sale of mortgaged property, for the reason that such sales are void and the mortgagee is fully empowered, if he so desires, to follow and take the mortgaged property under his mortgage wherever and whenever he finds it, and such sale under the law, if made wilfully and without the consent of the owner, is void, and the person so selling said mortgaged property shall be deemed guilty of larceny. (Mills v. Glennon, 2 Idaho 105, 6 P. 116; Jones on Chattel Mortgages, secs. 455, 456; Stafford v. Whitcomb 8 Allen, 518; Gage v. Whittier, 17 N.H. 312.)

There are none of the elements of larceny in this statutory offense, and the legislature could, therefore, with as much reason, have provided that any person violating any of the provisions of said section was guilty of murder. The legislature might have constitutionally made, as has been done in Nebraska, the selling of mortgaged personal property, a felony, but it could hardly make it larceny, any more than it could make it murder or burglary. (State v. Hughes, 38 Neb. 366, 56 N.W. 982.)

J. J. Guheen, Attorney General, and Edwin Snow, Assistant Attorney General, and Soule & Soule, for Appellant.

The discretion of the trial court in this matter, as in all others, is governed by law, and there must be in the record somewhere at least a possibility of legal error, or something must have occurred during the trial to deprive the defendant of a fair and impartial trial before the court can set aside the verdict of the jury. (State v. Driskell, 12 Idaho 245, 85 P. 499.)

The value of the property taken determines the degree of the crime of larceny. (25 Cyc. 60; People v. Comyns, 114 Cal. 107, 45 P. 1035; State v. Barker, 64 Mo. 282; People v. Price, 67 Cal. 350, 7 P. 745; People v. Garcia, 127 Cal. xviii, 59 P. 576; People v. Buelna, 81 Cal. 135, 22 P. 396.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This is an appeal on the part of the state from an order granting a new trial to the defendant, who was convicted of grand larceny for selling mortgaged cattle and sentenced to two years' imprisonment in the penitentiary. This prosecution was brought under the provisions of sec. 7100, Rev. Stat., which is as follows:

"Every mortgagor of property mortgaged in pursuance of the provisions of Chapter Four of Title Twelve of the Civil Code, who, while such mortgage remains unsatisfied in whole or in part, wilfully removes from the county or counties where such mortgage is recorded, or destroys, conceals, sells, or in any manner disposes of the property mortgaged, or any part hereof, without the consent of the holder of the mortgage, is guilty of larceny."

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