State v. Faulk

• Decision Date: 09 April 1908
• Citation: 116 N.W. 72,22 S.D. 183
• Parties: STATE OF SOUTH DAKOTA Plaintiff and respondent, v. HERBERT FAULK, Defendant and appellant.
• Court: South Dakota Supreme Court

22 S.D. 183

116 N.W. 72

STATE OF SOUTH DAKOTA Plaintiff and respondent, v. HERBERT FAULK,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Butte County, SD

Hon. William G. Rice, Judge

Affirmed

T. W. La. Fleiche

Attorney for plaintiff in error.

S.W. Clark, Attorney General

C. D. Sterling, Asst. Attorney General

A. H. Maxwell, State’s Atty.

Attorneys for the State.

Opinion filed April 9, 1908

CORSON, J.

Upon an information filed by the state’s attorney of Butte county the defendant was tried and convicted of the crime of grand larceny. When the case was called for trial, the defendant objected to the introduction of any evidence under the information on various grounds, but the objection was overruled, and the defendant excepted. Subsequently on the rendition of the verdict, the defendant moved upon substantially the same grounds in arrest of judgment and for a new trial, which were denied, and the defendant thereupon appealed to this court.

Numerous errors are assigned, but those discussed by counsel are: That the information is fatally defective in the following particulars: (1) There is no sufficient description of the property alleged to have been stolen. (2) There is no allegation that the property was taken from the person of the complainant, William O’Brien (3) There is no sufficient allegation that William O’Brien was the ‘owner of the property, (4) The information failed to charge sufficient facts to constitute grand larceny. (5) The verdict of guilty was not sustained by the evidence, because there was no proof that the gold coin described in the information was current money in this state, there was no proof of any value, there was no sufficient proof that the gold coin was money within the meaning of the law, and it utterly fails to disclose what kind of a gold coin or that it was money of any country; that there is no sufficient evidence to show that the complainant, William O’Brien, did not consent to the taking. The information, omitting the formal parts, is as follows:

“That Herbert Faulk … one gold coin, current as money in this state, of the value of five ($5.00) dollars and sundry silver coins, current as money in this state, of the aggregate value of three ($3.00) dollars, of the money of one William O’Brien, then and there being upon the person of said William O’Brien, by fraud and stealth, feloniously did steal, take, and carry away, with intent to deprive the said William O’Brien thereof, contrary to the form of the statute in such case made and provided, and against the peace land dignity of the State of South Dakota.”

By section 608 of the Revised Penal Code, as amended by chapter 151, p. 175, Laws 1903, grand larceny is thus defined:

“Grand larceny is larceny committed in either of the following cases:

(1) When the property taken is of value exceeding twenty dollars;

(2) when such property, although not of value exceeding twenty dollars, is taken from the person of another;

(3) when such property, although not of value exceeding twenty dollars, is a bull, steer, cow, heifer or calf, or is a stallion, mare, gelding, horse or colt.

Larceny in other cases is ‘petit larceny.”

It is contended by the defendant that the description of the property alleged to have been stolen as “one gold coin, current as money in this state,” is an insufficient description of the property alleged to have been stolen. By section 219 of the Revised Code of Criminal Procedure it is provided that “all the forms of pleading in criminal actions, and rules by which the sufficiency of pleadings is to be determined, are those prescribed” by the Code. State v. Flute,(1906); State v. Swenson,(1904). By section 237 it is provided: “In an indictment or information for the larceny … of money … it is sufficient to allege the larceny … without specifying the coin, number, denomination or kind thereof.” The term “coin” has a definite signification, and is defined by Webster as “a piece of metal on which certain characters are stamped by government authority, making it legally current as money.” Hence the designation of one gold coin of the value of $5 is in effect an allegation that it was a gold coin stamped by government authority, In Commonwealth v. Gallagher, 16 Gray (Mass.) 240, it was held by the Supreme Court of Massachusetts that “a complaint for larceny sufficiently describes the kind and value of property stolen as copper coin of the value of $2.75”; and in the opinion the court says:

“An indictment for larceny of coins usually alleges them to be money current. in the commonwealth. But we do not deem it to be necessary, for coins not here current as money are doubtless the subject of larceny. And in United States v. Rigsby, 2 Cranch, C. C. (US) 364, Fed. Cas, No. 16,163, it was decided that an indictment for larceny of ‘one silver coin of the value of fifty cents’ was ‘sufficiently certain, and that it was not necessary to allege its value in current money of the United States or of any other country. … And we doubt not that this legal meaning of the single word ‘coin’ is the same which is understood by people generally, as well as by professional men. It is the meaning given not only in law dictionaries, but by all lexicographers. As the word ‘coin’ without any prefix means metallic money generally, so ‘copper coin,’ without any further description, means copper money generally, and not a single coin, nor any specific number or kind of coins. In the present case the words ‘copper coin’ have the same meaning as copper coins.”

The contention of the defendant is therefore clearly untenable.

It is further contended by the defendant...