State v. District Court of Fifth Judicial Dist. in and for Nye County

• Decision Date: 05 September 1918
• Docket Number: 2328.
• Citation: 174 P. 1023,42 Nev. 218
• Parties: STATE ex rel. ESSER v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR NYE COUNTY et al.
• Court: Nevada Supreme Court

174 P. 1023

42 Nev. 218

STATE ex rel. ESSER v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR NYE COUNTY et al.

No. 2328.

Supreme Court of Nevada

September 5, 1918

Original proceedings in prohibition by the State of Nevada, on the relation of John Esser against the District Court of the Fifth Judicial District of the State of Nevada in and for Nye county, and Mark R. Averill, Judge of said court. Writ denied, and proceedings dismissed.

Thomas & Ham and Charles E. Barrett, all of Las Vegas, and C. L Richards, of Hebron, for petitioner.

H. H Atkinson, of Tonopah, for respondent.

McCARRAN C.J.

This is an original proceeding in prohibition. The petitioner, John Esser, was informed against by the district court of Nye county, the information reading as follows:

"That John Esser, on or about the 12th day of March 1917, *** did then and there commit the following felony, to wit: That then and there the said John Esser did feloniously steal, take, and carry away nine head of cattle, then and there not the property of the said John Esser, but then and there the property of L. P. Kimball and E. S. Van Dyke, against the peace and dignity of the state of Nevada."

Our statute provides (section 6640, Rev. Laws; section 375, Crimes and Punishments Act):

"Every person who shall feloniously steal, take and carry, lead, drive or entice away any horse, mare, gelding, colt, cow, bull, steer, calf, mule, jack, jenny, or any one or more head of cattle or horses or any sheep, goat, hog, shoat or pig, not his own property but belonging to some other person; *** shall be deemed guilty of grand larceny, and upon conviction shall be punished by imprisonment in the state prison for any term not less than one year nor more than fourteen years."

It appears that in the justice court the petitioner and one Joe May had been jointly charged with the crime of grand larceny, in which charge it was alleged that they did steal, take, and drive away nine head of cattle or more, the same being the property of L. P. Kimball and E. S. Van Dyke. Separate informations were filed against May and Esser in the district court. On the trial of May, the state called the petitioner, Esser, as a witness, and he was interrogated and examined in behalf of the prosecution.

Petitioner contends that this court should interfere by way of prohibition, and rests his contention upon several grounds: First, that the district attorney had no power or authority to file an information in this court against this defendant, for the reason that such information was filed for a purported violation of section 6640 of the Revised Laws of Nevada, the same being a purported act of the Legislature of the state of Nevada, whereas they contend this act of the Legislature was never approved or passed by the Legislature of the state of Nevada. Second, that the said section 6640 of the Revised Laws of Nevada was never passed by the Legislature of this state, and, if passed, is in violation of section 17 of article 4 of the Constitution of Nevada. It is asserted that this statute was never published as provided by law. Further, it is contended that the information is too indefinite and uncertain, the word "cattle," as used in the information, including quadrupeds of all description, such as horses, mares, cows, steers, sheep, and other animals. Again, it is contended by petitioner that, inasmuch as he was called as a witness by the prosecution against Joe May, he became then and there discharged from the charge against him. It is also contended that the district court had no power or authority to permit the district attorney to file an information in that court until a preliminary trial and hearing or examination had been accorded to the petitioner. By section 4 of chapter 209, Session Laws 1913, it is provided that the information shall be sufficient if it can be understood therefrom:

"That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended."

Paragraph 7 of the same section provides that the information shall be sufficient if it can be understood therefrom:

"That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case."

Keeping these provisions in mind, we inquire as to the sufficiency of the information, in view of the fact that the cattle alleged to have been stolen are described in that instrument as "nine head of cattle."

We find that the lexicographers, especially of the old schools, define the word "cattle" as including horses, mares, colts, geldings, and the like, as well as neat animals.

It is said in Louisville & F. R. Co. v. Ballard, 2 Metc. (59 Ky.) 177, that the word "cattle" usually includes horses and sheep; and in Robertson v. State, 1 Tex. App. 311, it is asserted that the term may be taken to include cows, steers, or oxen.

In Newark & S. O. H. C. R. Co. v. Hunt, 50 N. J. Law, 308, 12 A. 697, it is said that the word "cattle" includes all domestic quadrupeds, and may be taken as a general term to include horses and mules.

In the case of Decatur Bank v. St. Louis Bank, 21 Wall. (88 U. S.) 294, 22 L.Ed. 560, the court intimated that in a limited sense the word "cattle" might be used to designate the different variety of horned animals. In that case, however, the court found that the term was frequently used with a broader signification as embracing animals in general which serve as food for man.

In the case of United Stated v. Schmoll (C. C.) 154 F. 734, the court referred to a former decision in the case of Rossbach v. United States (C. C.) 116 F. 781, and there held that the term "hides of cattle" as used in the Tariff Act might include the hides of domesticated animals of the bovine species. The court held that by the term "cattle" it was to be understood as referring to domesticated bovine animals, as oxen, cows, bulls, and calves, or live stock, or it might refer to domesticated quadrupeds which serve for tillage and other labor or food for man. However, the court held that in a more popular sense the term "cattle," as the term is used in the United States, is understood as being restricted in meaning, and more especially applying to the group of so-called straight-backed cattle such as cows, oxen, steers, and bulls.

The term "bovine" is taken from the Latin "bos," which means cow or bull. "Neat cattle" are animals belonging to the genus bos, and the term does not embrace horses, sheep, goats, or swine. The term "cattle" as used in our statute undoubtedly means neat cattle. The term "cattle" as that expression is generally used in Western America, or at least in the Western States of the Union, by its common acceptation means neat cattle, straight-backed, domesticated animals of the bovine genus, regardless of sex. It is not generally taken to mean calves or animals younger than yearlings. It may, however, be sufficiently broad in its acceptation to include such. McIntosh v. State, 18 Tex.App. 285. It does, however, embrace and include cows, bulls, and steers. It is not a term which in its common acceptation embraces horses, mares, geldings, colts, mules, jacks, or jennies, nor does it embrace such as goats, hogs, sheep, shoats, or pigs. By the term "cattle" as used in section 6640, it must be inferred that the Legislature intended such to apply generally to cows, bulls, and steers of the domesticated bovine genus. It would, in our judgment, be folly to say in view of the common use of the term "cattle" in this western country, that a person of common understanding would not know what is intended by that expression; and the specific use of the term in the statute makes it proper for the pleader in an information or indictment to allege the larceny in such terms with the proper enumeration. Mathews v. State, 39 Tex. Cr. R. 553, 47 S.W. 647, 48 S.W. 189.

This same question was dealt with by the Supreme Court of California in the case of People v. Littlefield, 5 Cal. 355. There the indictment alleged the larceny of "three head of cattle." The court sustained the indictment in its use of these terms, holding that the defendant could not be prejudiced in his case by language of this character, and that such language was to be construed according to the common acceptation of the term.

We are referred to the case of State v. Brookhouse, 10 Wash. 87, 38 P. 862, where the identical term was dealt with by the Supreme Court of that state. We refuse to follow the decision in that case, as do we...