State v. Halpin

• Decision Date: 13 August 1902
• Citation: 91 N.W. 605,16 S.D. 170
• Parties: STATE v. HALPIN.
• Court: South Dakota Supreme Court

91 N.W. 605

16 S.D. 170

STATE v. HALPIN.

Supreme Court of South Dakota

August 13, 1902

Error to circuit court, Brown county.

John Halpin was convicted of grand larceny, and brings error. Affirmed.

John H McCoy and Frank Sears, for plaintiff in error. A. W. Burtt Atty. Gen., and John H. Perry, State's Atty., for the State.

FULLER J.

Omitting formal parts, the information to which the defendant pleaded not guilty, and upon which he was tried and convicted of grand larceny, is written as follows: "That heretofore to wit, on the 1st day of October, in the year of our Lord one thousand nine hundred and one, in the county of Brown, in the state of South Dakota, one John Halpin, late of said county of Brown and state of South Dakota aforesaid, did commit the crime of grand larceny, committed as follows, to wit: That at said time and place the said John Halpin did then and there unlawfully and feloniously, and by stealth steal, take, and carry away, of the personal property of J. O. Olson, sixty bushels of wheat of the value of $30.00, without the consent of the owner, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of South Dakota."

The objection that the facts stated in this information do not constitute a public offense was raised for the first time on motion in arrest of judgment, and is now urged as a ground for reversal. While the statute defines larceny to be "the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof," it has been held unnecessary in this jurisdiction to use the exact language of the statute, and an indictment for grand larceny, charging that the defendant "did fraudulently and feloniously steal, take, and carry away" was held sufficient, on the probable theory that the language thus employed is equivalent to the expression, "with the intent to deprive another thereof." Territory v. Anderson, 6 Dak. 300, 50 N.W. 124. Though to some extent informal, we think the information fairly imports all the elements of the crime of grand larceny, and, in ordinary and concise language, contains a statement of the acts constituting the offense, so as to enable a person of common understanding to know what is intended. Comp. Laws, § 7241; King v. State, 44 Ind. 285. The technical word "feloniously," when applied to an act, means that it was done with the intent to commit the crime named in the information. Even where the word "feloniously" was omitted from the information, and the word "steal" was alone employed, in charging the offense of grand larceny, it was held to sufficiently charge the criminal intent with which the act was committed, and meet the requirements of a statute very similar to ours. People v. Lopez, 90 Cal. 569, 27 P. 427.

Omitting certain minor circumstances tending to connect the accused with the crime charged, the action of the jury is based upon the following facts, which, for the purpose of determining the sufficiency of the evidence to justify the verdict, must be considered established: On the 1st day of October, 1901, which was about the time the wheat was stolen, the granary of the prosecuting witness was securely locked, and the bin from which such grain was taken contained about 500 bushels of No. 2 Northern wheat, then worth at the nearest market fully 52 cents per bushel. A day later, on returning to his home from work with a thrashing machine, the owner discovered that his granary had been broken into, and between 60 and 70 bushels of wheat had been stolen from the bin. In addition to showing a reasonably accurate means of estimating the amount of wheat taken from the bin, which originally contained 500 bushels, the witness testified that he has since hauled 380 bushels therefrom to market, and that there are about 50 bushels still remaining in the bin.

That the undisputed evidence is sufficient to enable the jury to determine the amount and value of the wheat taken, there can be no doubt. On the evening of October 1st, just about dark the defendant borrowed of Mr. Voss, one of his neighbors, a lumber wagon with a double box suitable for hauling grain, and told him that he was going to haul some wheat to market for the purpose of paying some debts. The singletrees on the wagon, when it was borrowed, were old and unpainted, but the wagon box was newly painted, unbroken, and in perfect condition. When it was returned, one of the front corners of the box was broken off by coming in contact with a projecting clevis bolt, and a new singletree had been supplied for one of the old ones. Concerning the wagon tracks leading from the granary, the prosecuting witness testified as follows: "I followed the course of the wagon next morning,--it was too late that day. I tracked it up about two miles, as near as I can judge. It went about three-quarters of a mile west, then angling northwest across the fields. I found the place where the horses became stalled,--that is, I found the first place; I found the last place afterwards. This last place was on the northern line of the west side of the southeast quarter of section 23, same township. I was down there with McKee and Fred Smith. He was driving out of the field into the highway; there is a kind of deep furrow ploughed pretty deep, and as the front wheels went into this he got stuck; by the appearances of everything the horses had stood there quite awhile,--some length of time, anyway. He had dug away in front of the front wheels, making the raise out of the ditch; he had dug or scratched it out in some way, and got the wagon out. I...