State v. Broom

• Decision Date: 31 March 1931
• Parties: STATE v. BROOM ET AL.
• Court: Oregon Supreme Court

297 P. 340

135 Or. 641

STATE v. BROOM ET AL.

Supreme Court of Oregon

March 31, 1931

Department 2.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

Mark Broom and wife were convicted of larceny from the person, and named defendant appeals.

Affirmed.

This is a criminal proceeding. The defendants, Mark Broom and Julia Marie Broom, his wife, were accused of the crime of assault and robbery, being armed with a dangerous weapon, and, upon the trial, were convicted of the crime of larceny from the person. Mark Broom was sentenced to serve a term in the penitentiary of not to exceed three years, and he appeals.

Chas W. Robison, of Portland (Hy Samuels, of Portland, on the brief), for appellant.

C. W Barrick, Dist. Atty., of Tillamook, for respondent.

BROWN, J.

The charging part of the indictment reads: "The said Mark Broom and Mrs. Mark Broom acting together on the 3d day of September, A. D., 1930, in the said county of Tillamook and state of Oregon, then and there being, and then and there being armed with a dangerous weapon, to-wit, a revolver, did commit an assault on one L. B. Lucas, with intent, if resisted, to kill or wound the said L. B. Lucas, and did then and there unlawfully and feloniously take a 32-20 caliber revolver from the person of the said L. B. Lucas and against his will, contrary to the statutes in such cases made and provided. * * *"

With relation to the crime charged, section 14-228, Or. Code 1930 provides: "Assault and robbery, being armed with a dangerous weapon.--If any person being armed with a dangerous weapon shall assault another with intent, if resisted, to kill or wound the person assaulted, and shall rob, steal, or take from the person assaulted any money or other property which may be the subject of larceny, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary for a period of not less than ten years or during the natural life of such person so convicted. * * *"

Relating to larceny by stealing from the person, section 14-317 provides: "If any person shall commit the crime of larceny by stealing from the person of another, such person shall, upon conviction thereof, be punished by imprisonment in the penitentiary not less than one nor more than five years, or by imprisonment in the county jail not less than six months nor more than one year, or by fine not less than $100 nor more than $500."

The manner of stating the acts constituting a crime as set forth in "Forms of Indictments" referred to in Oregon Code, 1930, at section 13-705, is declared to be sufficient in all cases where applicable. State v. Dodson, 4 Or. 64; State v. Spencer, 6 Or. 152; State v. Weston, 102 Or. 102, 201 P. 1083, and cases there cited.

Form No. 10, relating to "Robbery, being armed with a dangerous weapon," reads: "Being armed with a dangerous weapon, did commit an assault upon one C D, with intent, if resisted, to kill or wound the said C D, and then and there feloniously took a gold watch (or as the case may be) from the person of the said C D, and against his will."

Form No. 11, relating to "Indictment for larceny," reads: "Feloniously took and carried away a gold watch (or as the case may be), the personal property of C D. (or of a person whose name is unknown to the grand jury) of the value of more than $35."

Form No. 12, relating to "Larceny in a dwelling-house," is as follows: "Feloniously took and carried away in a dwelling-house (or other house, ship, or boat, as the case may be) a gold watch (or as the case may be), the personal property of C D (or a person whose name is unknown to the grand jury)."

Concerning the subject of larceny, Dr. Bishop, in his noted work on criminal law, says: "We shall find, as we proceed with this chapter, our way encumbered by many technical rules; more, indeed, than under any other title in the criminal law. * * * The horribly severe punishment (death) meted out for this offense in earlier times has also been influential in inducing courts to refine and limit the crime. This process frequently enabled them, in cases which they deemed to be meritorious, to avoid the necessity of pronouncing the death penalty. The subject of larceny therefore is the best illustration of the old saying that hard cases make bad law." 2 Bishop on Criminal Law, § 760.

In this day, however, the prisoner comes to trial represented by able counsel, with a full fair chance for self-defense; and the time is past when it was necessary to make technicalities the means of justice. See O'Kelly v. Territory, 1 Or. 51.

A case cited by the defendants quite similar in its facts to the one at bar is State v. Lawrence, 20 Or. 236, 25 P. 638. In that case this court held that a conviction for the crime of larceny from the person cannot be sustained under an indictment for robbery which fails to charge that the property was taken from the person of another. In the case at bar, the indictment fails to allege directly the ownership of the revolver taken from Lucas, or the value thereof, but it does aver facts implying ownership and property therein.

"Larceny * * * is the taking and removing, by trespass, of personal property which the trespasser knows to belong either generally or specially to another, with a felonious intent to deprive him of his ownership therein." 2 Bishop on Criminal Law (9th Ed.), § 758.

See, also, Clark's Criminal Law, p. 241.

Rapalje, in his work entitled "Larceny and Kindred Offenses," at page 3 thus defines the term: " 'Larceny' is derived from the Norman French 'larcyn,' Latin 'latrocinium,' and signifies the felonious, wrongful, and fraudulent taking and carrying away by any person, of the personal goods of another, with the felonious intent to convert them to his own use and make them his property, without the consent of the owner. The taking must be without the least color of right or excuse, against the will of the owner, and from his actual or constructive possession."

Larceny from the person is a compound offense, the crime being aggravated by reason of the fact that the theft is committed of property upon the person of another.

Throughout the hearing the sufficiency of the indictment herein was not challenged. However, if it fails to state facts sufficient to constitute a crime, it is yet subject to attack.

In order to state the crime of robbery, the indictment should include facts sufficient to charge the commission of the crime of larceny, or, in the instant case, the crime of larceny from the person. Robbery is open and violent larceny from the person. See Anderson's Law Dictionary. For the reason that an indictment for robbery must aver everything necessary to constitute larceny from the person, there may be a conviction for larceny from the person under an indictment for robbery. An indictment for simple larceny should aver ownership of the property alleged to have been feloniously taken; and somewhere in a proper indictment for larceny it must appear that the property taken was something of value. In other words, the indictment must show that the thing stolen was the property of some one other than the taker, and was a thing of some value. The term "property of," as here used, implies, not only ownership, but also that the thing owned possesses some value, however small. 1 McClain on Criminal Law, § 473.

" 'Property' is a term of very broad signification embracing...