State v. Barry
| Citation | 79 N.W. 656,77 Minn. 128 |
| Decision Date | 23 June 1899 |
| Docket Number | 11,509 - (17) |
| Parties | STATE v. ALFRED J. BARRY |
| Court | Supreme Court of Minnesota (US) |
Defendant was indicted in the district court for Meeker county for grand larceny in the first degree. The case was tried before Powers, J., and a jury, which rendered a verdict of guilty; and from a judgment entered pursuant to the verdict, defendant appealed. Affirmed.
Warehouse Receipt -- Contract of Bailment not of Sale.
A receipt for grain placed in store, which in all other respects constituted a bailment, contained this clause "Which amount, and same quality by grade, will be delivered to the owner of this receipt or his order," and also provided that the grain was insured for the benefit of the owner, and that the latter should pay for storage at a certain rate. Held, that this receipt constituted a contract of bailment, and not one of sale.
Grand Larceny -- Indictment.
Held, further, that the indictment in this case states facts sufficient to constitute the offense of grand larceny in the first degree, under Pen. Code, § 415, subd. 2.
John T. Byrnes and M. C. Brady, for appellant.
The language of the indictment is not sufficiently full and explicit to inform defendant of the nature and cause of the accusation. Pen. Code, § 415, points out several methods in which the crime may be committed, though it does not use the term "bailee" in connection with all. Where the definition of a crime includes generic terms, the indictment must state the species, and must descend to particulars. U.S. v. Hess, 124 U.S. 483; U.S. v. Carll, 105 U.S. 611; State v. Howard, 66 Minn. 309, 312. This statute defines the crime by its legal result, and does not contain its essential elements. Wharton, Crim. Pl. (9th Ed.) § 154; McCann v. U.S., 2 Wyo. 274. The indictment should bring the case within the portion of the statute defining the offense under the conditions enumerated. State v. Griffith, 45 Kan. 142. See also State v. Grisham, 90 Mo. 163; Gaddy v. State, 8 Tex.App. 127; People v. Poggi, 19 Cal. 600; Com. v. Smart, 6 Gray, 15; McCann v. U.S., supra; Moore v. U.S., 160 U.S. 268; People v. Cohen, 8 Cal. 42; 1 Wharton, Crim. L. 1061; People v. Peterson, 9 Cal. 314. The indictment contains no direct or positive allegation that defendant was bailee of Pearson, the complaining witness. People v. Allen, 5 Denio, 76, 79; People v. Tryon, 4 Mich. 666, 667; Gaddy v. State, supra; Moore v. U.S., supra.
Laws 1895, c. 148, was a substitute for all former acts relative to storing grain in country warehouses. It was a revision, and a substitute for pre-existing laws. Sutherland, St. Const. §§ 154, 155; King v. Cornell, 106 U.S. 395; Smith v. County of Nobles, 37 Minn. 535; Giddings v. Cox, 31 Vt. 607. It makes what was a felony a misdemeanor, and repeals the old law. State v. Currie, 3 N.D. 310. Its title is comprehensive, and is of moment in ascertaining the meaning of the act. People v. Wood, 71 N.Y. 371; Sutherland, St. Const. §§ 210-213.
The offense shown by the evidence does not come within the statute under which the indictment was drawn. There was a variance between the evidence and the indictment. Other persons had wheat in the elevator which was shipped out at the same time, whereas the indictment charges defendant with converting 1,077 40/60 bushels of wheat the property of Nels M. Pearson. Hall v. Pillsbury, 43 Minn. 33, 35. Pearson was not owner, but tenant in common in the mass. Hence defendant could be indicted on complaint of each of the other tenants in common, notwithstanding that all the wheat was shipped out at one time. Such cannot be the law, for there could be but one prosecution and conviction. Rapalje, Larceny & Kindr. Off. § 117; Hoiles v. U.S., 3 Mac-Arthur, 370; Hudson v. State, 9 Tex.App. 151. The indictment should have contained the names of the owners of the whole amount claimed to have been taken. This difficulty is not overcome by G.S. 1894, § 7263. The complaining witness was not "in actual or constructive possession" of the wheat; nor had he a "general or special property in the whole or any part." Property is the exclusive right of possessing, enjoying, and disposing of a thing; or ownership. Slief v. Hart, 1 N.Y. 20, 24; Rigney v. City, 102 Ill. 64, 77; Ayers v. Lawrence, 59 N.Y. 192, 198; Dow v. Gould, 31 Cal. 630, 637; Dorman v. State, 34 Ala. 216, 239; Stevens v. State, 2 Ark. 291, 299. Special property consists in the right to custody and detention against the lawful owner. Eisendrath v. Knauer, 64 Ill. 396, 402; Beecher v. Allen, 5 Barb. 169, 175. The complaining witness was absolute owner of an undivided portion. The interest in the property of the person named in the indictment as owner should not be such an interest as is incapable of identification, but a separable part, with entirety of ownership therein. State v. Merrill, 44 N.H. 624; State v. Daniels, 32 Mo. 558; Hudson v. State, supra.
The contract is a contract of sale, and not a contract of bailment. Rahilly v. Wilson, 1 Cent. L.J. 80; McCabe v. McKinstry, 5 Dill. 509; Chase v. Washburn, 1 Oh. St. 244; South Australian v. Randell, 3 Priv. C. 101; Lonergan v. Stewart, 55 Ill. 44; State v. Rieger, 59 Minn. 151; 22 Alb. L.J. 358; Murray v. Pillsbury, 59 Minn. 85; Weiland v. Sunwall, 63 Minn. 320; Smith v. Clark, 21 Wend. 83; Dykers v. Allen, 7 Hill, 497; Hurd v. West, 7 Cow. 752, and note; 2 Kent, Com. 589, and note; State v. Stockman, 30 Ore. 36; Fishback v. Van Dusen & Co., 33 Minn. 111, 123.
W. B. Douglas, Attorney General, and C. W. Somerby, Assistant Attorney General, for the state.
The indictment is sufficient. The gravamen of the offense is the conversion. The bailment, agency, employment, etc., must be averred, but the particulars thereof need not be, because they are matters of inducement. Bishop, Stat. Crimes, § 422; People v. Hill, 3 Utah, 334; Ritter v. State, 111 Ind. 324; State v. Poland, 33 La. An. 1161; State v. Washington, 41 La. An. 778; State v. Jamison, 74 Iowa 602, 604; State v. Goss, 69 Me. 22; State v. Mohr, 68 Mo. 303; State v. Meyers, 68 Mo. 266; Lycan v. People, 107 Ill. 423; 1 McClain, Crim. L. § 654; 2 Bishop, New Crim. Proc. § 323a; G.S. 1894, §§ 6709, 7645-7648; People v. Page, 116 Cal. 386; Lowenthal v. State, 32 Ala. 589; People v. Johnson, 71 Cal. 384; State v. Comings, 54 Minn. 359, 361. Cf. State v. Mims, 26 Minn. 191. When the offense is statutory, and is completely defined, an indictment in the language of the statute is sufficient. State v. Comfort, 22 Minn. 271; State v. Mohr, supra; People v. Tomlinson, 66 Cal. 344; People v. Mahlman, 82 Cal. 585; People v. Page, supra. Where a statute expressly designates a particular class of bailees, it has been held that the indictment must contain allegations bringing the person charged within the scope of the statute; and if the statute is deficient in its definition some courts hold that the indictment should allege all the elements essential to the crime. Terry v. State, 1 Wash. 277; State v. Mims, supra. To this class belong many of the cases cited by appellant.
Laws 1895, c. 148, does not repeal by implication Pen. Code, § 415. State v. Rieger, 59 Minn. 151; State v. Miller, 140 Ind. 168; State v. Stevenson, 52 Iowa 701. Repeals by implication are not favored. The acts must be inconsistent, and the repugnancy clear and unmistakable. Moss v. City of St. Paul, 21 Minn. 421. See also Beal v. White, 28 Minn. 6. The relation of bailor and bailee existed independently of G.S. 1894, § 7645. Ardinger v. Wright, 38 Ill.App. 98; 1 McClain, Crim. L. § 554; Hutchison v. Com., 82 Pa. St. 472; State v. Stevenson, supra.
It is conceded by each party to this action that the defendant was indicted and convicted under G.S. 1894, § 6709, subd. 2, being same as section 415 of the Penal Code. The indictment is as follows:
"Alfred J. Barry is accused by the grand jury of the county of Meeker, in the state of Minnesota, by this indictment, of the crime of grand larceny in the first degree, committed as follows: The said Alfred J. Barry on the 26th day of December in the year 1896, at the town of Litchfield, in the county of Meeker, in the state of Minnesota, then and there having in his custody and control and possession as bailee of Nels M. Pearson, ten hundred seventy-seven and 40/60 bushels of wheat, of the value of six hundred forty-seven 60/100 dollars, did then and there, with the intent to defraud the owner of said wheat, and with the intent to deprive the true owner of said wheat of the same, wilfully, wrongfully, unlawfully, and feloniously appropriate the whole of said wheat to his own use, the said Nels M. Pearson being then and there the true owner of said wheat. Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Minnesota.
Dated at Litchfield, in said county of Meeker, this 27th day of January, A.D. 1897.
W.M. Abbott, Foreman of the Grand Jury."
G.S. 1894, § 6709 (Pen. Code, § 415), under which the indictment was found, is as follows:
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