State v. Donahue

• Citation: 144 P. 755,75 Or. 409
• Parties: STATE v. DONAHUE.
• Decision Date: 15 December 1914
• Court: Supreme Court of Oregon

144 P. 755

75 Or. 409

STATE v. DONAHUE.

Supreme Court of Oregon

December 15, 1914

Department 2.

Appeal from Circuit Court, Washington County; J. U. Campbell, Judge.

J. M Donahue was convicted of theft of certain sawlogs, and he appeals. Affirmed.

E. B. Dufur, of Portland (W. P. Myers, of Prineville, on the brief), for appellant. E. B. Tongue, Dist. Atty., of Hillsboro (Thomas H. Tongue, Jr., of Hillsboro, on the brief), for the State.

McNARY J.

On the 15th day of September, 1913, the grand jury of Washington county accused defendant of the theft of 500,000 feet of sawlogs. The charging part of the indictment follows:

"That the defendant, J. M. Donahue, upon the 1st day of May, A. D., 1913, in the said county of Washington, state of Oregon, then and there being, did then and there willfully and unlawfully and feloniously take, steal and carry away 500,000 feet of sawlogs of the value of seven hundred and fifty dollars ($750.00), the personal property of Elizabeth Freeman."

Conviction followed on the 24th day of April, 1914. On May 2, 1914 counsel for defendant moved for an arrest of judgment upon the assumption that the indictment did not state facts sufficient to constitute an offense and that the evidence failed to establish the commission of a crime. Contemporaneously, the circuit court disallowed the motion and pronounced judgment that defendant should be confined in the penitentiary from one to ten years and that defendant be paroled on condition that he pay for the timber by him actually felled and removed. On the 20th day of July following, defendant, through his counsel, filed a motion to vacate the judgment of conviction for the reason that the "record failed to show that the defendant had ever been arraigned or entered his plea." This motion, too, was overruled on July 30th. The same day the district attorney moved the court for an order nunc pro tunc of the arraignment and plea of defendant as of April the 24th. At a time coexistent with the application of the district attorney, and in the absence of defendant, the court made the order upon the statement embodied in three separate affidavits that the defendant was duly arraigned, and entered a plea of not guilty.

The first assignment of error challenges the sufficiency of the indictment by asserting that it is so indefinite that it is impossible to tell whether the language employed brings the crime within the law of larceny as fixed by section 1947, L. O. L., or the law of trespass on lands of another as defined by section 1984, L. O. L.:

"If any person shall willfully cut down, destroy or injure any standing or growing tree upon the lands of another, or shall willfully take or remove from any such lands any timber or wood previously cut or severed from the same, or shall willfully dig, take, quarry, or remove from any such lands any mineral, earth, or stone, such person, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than one year, or by fine not less than $50.00 nor more than $1,000.00."

The learned district attorney proceeded upon the hypothesis that the felling of timber upon the land of another, cutting the timber into sawlogs, and removing the logs so felled and sawed, constituted larceny as defined by section 1947, L. O. L.:

"If any person shall steal any goods or chattels, or any government note, bank note, promissory note, bill of exchange, bond, or other thing in action, or any book of accounts or order or certificate concerning money due or to become due or goods to be delivered, or any deed or writing containing a conveyance of land or any interest therein, or any bill of sale or writing containing a conveyance of goods or chattels, or any interest therein, or any valuable contract in force, or any receipt, release, or defeasance, or any writ, process, or public record, or any railroad, railway, steamboat, or steamship passenger ticket or other evidence of the right of a passenger to transportation, which is the property of another, such person shall be deemed guilty of larceny, and upon conviction thereof, if the property stolen shall exceed in value $35.00, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years; but if the property stolen shall not exceed the value of $35.00, such person, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than one year, or by fine not less than $25.00 nor more than $100.00."

Defendant's counsel ably urges that, if any offense was committed by defendant, it was not larceny, but the crime of trespass. The testimony disclosed by the bill of exceptions justifies the statement that defendant, prior to the time of the commission of the acts charged in the indictment, was operating a sawmill on lands owned by E. W. Haines adjoining the property of Elizabeth Freeman; that, after exhausting the merchantable timber upon the Haines' tract, defendant conducted some negotiations through Mr. Haines for the purchase of the timber owned by Elizabeth Freeman. While there is some conflict in the testimony concerning when the negotiations were had and how far they proceeded, yet, by its verdict, the jury determined, as a matter of fact, that defendant had no legal right to go upon the Freeman land and remove the timber therefrom. Well55 we might add that competent testimony was brought to the consideration of the jury which would legally sustain either a verdict of exculpation or of conviction.

The question first presented concerns the applicability of the statute to the facts charged. The contention of defendant is that the indictment should have been found under the trespass section of the statute and not under the larceny section. The former section does not undertake to punish a person who asports timber from places other than upon the lands where the timber is growing or is felled. In dissimilar situations resort must be had to the section denouncing larceny. Moreover, under section 1984 defining trespass on lands of another the act which it undertakes to forbid is done willfully, which the statute at section 2393, L. O. L says embraces "simply a purpose or willingness to commit the act * * * and does not require any intent to violate law, to injure another or to acquire any advantage"; whereas, in the section defining larceny, an intent by which the offense is committed is an essential element. Therefore, in our opinion, the crime of larceny and the crime of trespass on the land of another are entirely separate and distinct offenses, and the evidence which would support a conviction for a violation of one section would not necessarily show the party accused as guilty of the other. It may be said that this case falls within the provisions of said section 1984 because it refers particularly to the cutting or removing of timber on the land of another, and for that reason it excludes all other punishments for that offense. That idea would be indisputable if the commission of the acts about which complaint is made were identical in measure with the statute making the transaction punishable. Then the special statute would inevitably operate to limit the effect and force of a general act comprehending the unlawful transaction. The willful cutting of timber upon the land of another or its willful removal is taken out of the general class of larceny and made in substance an independent offense, but the felling of timber and its subsequent asportation, whether upon the land of another or elsewhere, if accompanied by a larcenous intent and not alone willfully, is still within the pale of the statute defining larceny. Resting within the province of the jury was the decision of this question. There was some testimony given to the jury from which a criminal intent was inferable, and for that account the section of the statute defining larceny was properly used as the tape by which to measure the presence or absence of that intent. The trial court did not, we conclude, err in holding that the defendant was prosecuted under an appropriate provision of the statute. Woods v. People, 222 Ill. 293, 78 N.E. 607, 7 L. R. A. (N. S.) 520, 113 Am. St. Rep. 415, 6 Ann. Cas. 736. Besides, it is no defense to an indictment under one statute that a defendant might also be punished under another. In re Converse, 137 U.S. 624, 11 S.Ct. 191, 34 L.Ed. 796; State v. Glenn Lumber Co., 83 Kan. 399, 111 P. 484; State v. Gallamore, 83 Kan. 412, 111 P. 472; State...