State v. Ginther

• Decision Date: 28 March 1938
• Docket Number: 2039
• Citation: 53 Wyo. 17,77 P.2d 803
• Parties: STATE v. GINTHER
• Court: Wyoming Supreme Court

77 P.2d 803

53 Wyo. 17

STATE v. GINTHER

No. 2039

Supreme Court of Wyoming

March 28, 1938

APPEAL from the District Court, Albany County, SAM M. THOMPSON Judge.

Phil L Ginther was informed against for theft of a cow and with receiving the animal knowing it to have been stolen. From an order sustaining the defendant's motion in arrest of judgment on the ground that the facts stated in the information did not constitute an offense, the State appeals.

Appeal dismissed.

For the appellant, there were briefs by Ray E. Lee, Attorney General Thos. F. Shea, Deputy Attorney General; Wm. C. Snow Assistant Attorney General, of Cheyenne, and Glenn Parker of Laramie, and oral arguments by Messrs. Shea and Parker.

The prosecution was on two counts, one for stealing livestock, the other for receiving the animal, knowing it to have been stolen. Defendant was found guilty on both counts. A motion for arrest of judgment was sustained. Defendant was undoubtedly guilty of the charges against him. The information was sufficient. McGinnis v. State, 16 Wyo. 72. The statute, Section 32-319, R. S. 1931, originally prescribed a value of $ 5.00 and upwards, but the legislature later removed the amount. The animal was of some value. Territory v. Pendry, 22 P. 760; 17 R. C. L. 60; 36 C. J. 826. No allegation of value was necessary. Woodring v. Territory, 81 P. 631; Cox v. Territory, 104 P. 378; State v. Broom, 297 P. 340; State v. Eppers, 6 P.2d 1086; State v. Ingersoll, 292 P. 250; State v. Jaramillo, 180 P. 286; State v. Young, 43 P. 881; State v. Washing, 78 P. 1019; State v. Klein, 80 P. 771. Section 33-1004, R. S., requiring juries to find the value of stolen property, does not alter the situation. Griffith v. State, (Nebr.) 142 N.W. 790; Halbert v. State, 215 N.W. 459. In view of the Nebraska cases, it is difficult to reconcile the judgment. Thomson v. State, 21 Wyo. 196, which follows Armstrong v. State, 21 Ohio St. 357. The Thomson case is distinguished from the case at bar. This court in the case of State v. LeMasters, 36 Wyo. 241, held that it was unnecessary to find the value of the property, where not required by statute. By the great weight of authority, the verdict as to the stealing of an animal is good and should stand, the information containing all essentials required by other courts. The order granting defendant's motion in arrest was error. Questions not raised by the assignment of errors cannot be considered by this court. State v. Costin, 46 Wyo. 463. Section 33-1037 prescribes causes for arrest of judgment. Theft of animals is a substantive crime, under the statute, similar to receiving stolen goods. Section 32-318, R. S. 1931. Receiving stolen goods has been held to be a separate, distinct, substantive crime. State v. LeMasters, supra. The Nebraska cases of McCoy v. State and McCormick v. State have since the decision in Thomson v. State, 21 Wyo. 196, been held to be inapplicable to a case like the one at bar, since they were decided before Nebraska's stealing of livestock statute was passed. Griffith v. State, (Nebr.) 142 N.W. 790. The cases of Fisher v. State, (Nebr.) 72 N.W. 954 and Holmes v. State, (Nebr.) 78 N.W. 641, have been overruled by the Nebraska Supreme Court. Griffith v. State, supra. The order sustaining the motion in arrest, was based upon the fact that the information did not allege the cow in question to be of value. It was the duty of defendant to raise the point at the earliest opportunity. 16 C. J. 836; McGinnis v. State, 16 Wyo. 72. It was unnecessary that the verdict state the value of the animal. Thomson v. State, supra; Halbert v. State, supra. At the request of the court, we submit the following authorities regarding jurisdiction of the court in this appeal. We should not lose sight of the fact that the issue is the validity of an order arresting judgment. There is no question of double jeopardy involved. Article I, Section 2, Constitution. The general rule applicable to appeals by the state appears in 17 C. J. 39, 43. Miller on Criminal Law, 536. The first statutes passed on the subject have by changes and amendments become our Sections 33-1202, 33-1203 and 33-1204, R. S. 1931. These were first passed in 1884. The statute which is now Section 33-1201 was passed in 1895, Chapter 27. It remained in force until 1901. It was the statute referred to in State ex rel Gibson v. Cornwell, 14 Wyo. 526. It was revised and re-enacted by the legislature in 1901 and is now Section 33-1201, R. S. 1931. In the Cornwell case, it was pointed out by Judge Potter that the officer appealing had not followed the statute. The fact that the words "on application of the defendant" are left out of the amended statute can mean but one thing, i. e., that in all criminal cases the proceedings to vacate, modify or annul may be brought by either party. Section 89-4901 and Section 89-4915 were construed in the case of Ramsey Motor Company v. Wilson, 47 Wyo. 54. By reasoning often pronounced in this court, dates of enactment will be considered in determining legislative meaning and effect given to a later statute. Burton v. U. P. Coal Company, 18 Wyo. 363; Marsh v. Aljoe, 41 Wyo. 119. Ginther was properly convicted in this case; the evidence was sufficient and the information was valid. The trial judge erroneously decided that the information will not sustain this conviction. In this the trial court is mistaken. In another trial more money will be spent, more time consumed and the witnesses may not be found. Under the above circumstances, from any standpoint of reason, or of the proper administration of governmental functions, should it be held that the judicial function of government is bogged down because a trial judge made a mistake? The asking of the question should constitute its answer.

For the respondent, there were briefs and an oral argument by F. E. Anderson of Laramie.

The action was brought under Section 32-319, R. S. 1931, prohibiting the stealing of livestock of value. Value is therefore an element of the crime. Every substantial element of the offense defined by the statute should be alleged (14 R. C. L. 185), and proven beyond reasonable doubt. Section 33-1004, R. S. requires juries to determine the value of stolen property. State v. Brew, (Wash.) 29 P. 762; Sullivan v. Territory, (Okla.) 58 P. 650. Where an information did not allege the value of the animal stolen, it was insufficient to charge larceny of a domestic animal. State v. Goodrich, 46 N.H. 186; Bryan v. State, 144 P. 392; Davis v. State, 40 Ga. 229; 17 R. C. L. 29; State v. Smart, 55 Am. Dec. 683. It is not impossible to imagine the existence of livestock having no value. The situation seems to be governed by the case of Thomson v. State. The Thomson case appears to be better law than the decisions from Montana, Washington and New Mexico, cited by the opposition. Value is a necessary element of the offense and it should be alleged and proven. The second count in the information was not supported by a word of testimony.

As to Jurisdiction:

The position of opposing counsel is made untenable by the words of Chief Justice Potter in the case of State ex rel Gibson v. Cornwell, 14 Wyo. 526. The Gibson case was decided several years after the 1901 amendment to the statute referred to by counsel in his brief, in which the court said that no provision is made by statute for an appeal by the state in criminal cases. By citing 17 C. J. 39, counsel seem to admit that the state has no right to an appeal in criminal cases, unless specifically conferred by statute. Again using the words of Judge Potter in the Gibson case: "It is only upon a compliance with the provisions of the statute in question that this court obtains jurisdiction to review any ruling of the district court adverse to the state in criminal prosecutions." And since the prosecuting attorney did not attempt to follow the statute passed for that purpose, but followed the mode provided for appeal on the part of the defendant, we think he has clearly failed to bring the matter under the jurisdiction of this court.

RINER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

Phil L. Ginther was charged under the first count in an information filed by the county and prosecuting attorney of Albany County with the theft of a cow, and in the second count, with receiving the animal knowing it to have been stolen. No value of the property taken was alleged in either count of the information. Ginther entered a plea of "not guilty" and the case proceeded to trial. April 7, 1937, the jury found him guilty on both counts. April 9th following, his counsel filed a motion in arrest of judgment, on the ground that the facts stated in either count of the information did not constitute an offense. The defendant's motion aforesaid was sustained by an order of the trial court, Ginther was ordered to give bail, as provided in Section 33-1039, W. R. S., 1931, and the State was allowed an exception to this ruling. The State now seeks the reversal of this order by the direct appeal method of review proceedings. The cause was duly heard upon briefs and arguments submitted, but this court, upon examination of the record, suggested the question of the State's right to institute a proceeding of this character, and accordingly requested that briefs be submitted upon this additional point which was neither originally considered, briefed nor argued by the parties. That has been done and the cause is now for disposition.

It seems generally held under the common law as administered in this country that the State may not bring a writ of error or take an appeal or have exceptions in a criminal case, unless the right thereto has been expressly granted by statute though there are some decisions which appear to...