State v. Eno

• Decision Date: 01 January 1863
• Citation: 8 Minn. 190
• Parties: THE STATE OF MINNESOTA vs. RICHARD G. ENO.
• Court: Minnesota Supreme Court

8 Minn. 190

THE STATE OF MINNESOTAvs.

RICHARD G. ENO.

Supreme Court of Minnesota.

Certified from the district court, Waseca County.

Points and authorities for defendant: —

1. The indictment does not conform to the 2d subdivision of sec. 66 Comp. Stat.

2. Neither does it conform to the 67th and 69th sections of the same chapter. Biggs v. People, 8 Barb. 547; People v. Taylor, 3 Denio, 91.

3. The indictment does not conform to the 7th subdivision of sec. 76, Comp. Stat.; see also authorities cited on last point.

4. If the indictment demurred to, charges simple larceny in accordance with the statute (as claimed by the prosecution), it also charges, with more clearness and certainty, larceny from the person, burglary and stealing from an out-house (several distinct offenses, for which the law provides distinct penaties), and is demurrable for duplicity. Therefore the 2d and 3d grounds of demurrer were well taken. Folio 3. Comp. Stat. 757-8, Nos. 13, 14, 15 and 16; id. 765, § 118, sub. 3; 2 Mass. 163. A substantive charge in an indictment, like that in this indictment (to-wit, "did feloniously steal, take and carry away from the person, etc., of said Orrin Pease"), cannot be rejected as surplusage. Com. v. Atwood, 11 Mass. 93; Arch. Cr. Pr. 54 and 107-8; Rex. v. Stevens, 5 East. 244.

5. This indictment in no respect resembles any of the forms of indictment prescribed by statute or common law, except those charging the offense of robbery and larceny from the person, which forms, like this indictment, are inappropriate and incompetent for charging simple larceny. Comp. Stat. 758, Nos. 13 and 16; Arch. Cr. Pl. 170 and 262, s. p.

6. But suppose the judge did not err in the court below, by holding the indictment good on demurrer, since it charges no less offense than that of robbery or larceny from the person, and the jury having found a general verdict of "guilty," the defendant stands convicted of the whole charge in the indictment and the court must pronounce judgment and sentence accordingly, which judgment would be unsupported by and contrary to the evidence given at the trial.

Gordon E. Cole, Attorney General.

Batchelder & Buckham, for defendant.

FLANDRAU, J.

The crime of larceny is, by the statutes, (Comp. Stat. 710) divided into several classes or degrees, more or less aggravated, according to the circumstances under which it is committed. Larceny from the person is ranked as the highest offense, being punished by imprisonment in the state prison for a term not more than four years, nor less than two, or by fine and imprisonment in the county jail. Larceny in a dwelling-house, office, shop, bank, or warehouse, ship, steamboat, or vessel, etc., is classed next, and simple larceny is the lowest degree, being divided into larceny of over one hundred dollars in value, and under that sum, the former being a felony and the latter a misdemeanor simply.

In the chapter on indictments (ch. 105, p. 755), forms are provided and declared to be sufficient. We have held that a substantial adherence to these forms is sufficient, as they form part of the statute. Bilansky v. State, 3 Minn. [427]. The forms divide the body of the indictment into two parts — first, the accusation, and second, the specification of the crime charged. In the accusing part, the defendant is charged with having committed a certain crime, naming it, if it has a name, as, treason, murder, arson, manslaughter, larceny, etc., and in the specification, the crime charged is particularly described. In the indictment in this case, the defendant is charged with having committed the crime of larceny, which is described to have been by feloniously stealing, taking, and carrying away, a span of horses, worth three hundred dollars, "from the person and possession of the said Orrin Pease, being from a stable occupied by him at St. Mary aforesaid, and wherein said horses were stabled at the time of said larceny." The reason that larceny from the person is considered by the legislature a higher offense than other stealing, is because the crime involves an invasion of the person of the citizen as well as the stealing of the property. It includes all cases of pocket-picking and similar offenses, but in our opinion, extends to every case of stealing, where the property stolen is on the person, or in the immediate charge and custody of the person from whom the theft is made. For instance, should a cane or umbrella be taken from the hand of a person, or a barrow that he was wheeling, or tool with which he was employed, or horse that he was driving, leading, or holding by the bridle, we are clearly of the opinion that the theft would be larceny from the person....