State v. Hinton

• Citation: 56 Or. 428,109 P. 24
• Parties: STATE v. HINTON.
• Decision Date: 31 May 1910
• Court: Supreme Court of Oregon

109 P. 24

56 Or. 428

STATE v. HINTON.

Supreme Court of Oregon

May 31, 1910

Appeal from Circuit Court, Grant County; Geo. E. Davis, Judge.

Ben Hinton was convicted of larceny, and he appeals. Affirmed.

Defendant was indicted at the November, 1908, term of the circuit court for Grant county, being charged with the larceny of a bill of exchange, in the form of an ordinary check upon a bank. The charging part of the indictment reads as follows: "That the said Ben Hinton on the 29th day of May, A.D. 1908, in the county of Grant, and state of Oregon, then and there being did then and there wrongfully, unlawfully, and feloniously take, steal, and carry away a bill of exchange, commonly called a bank check, drawn on the First National Bank of Heppner, Oregon, and payable on demand to the order of F.M Rounds, said bill of exchange then and there being the personal property of the said F.M. Rounds and of the value of sixty dollars and fifty cents." Defendant's demurrer to the indictment was overruled, and a plea of "not guilty" having been entered he was tried, and a verdict of guilty returned, in which the value of the check was found to be $60.50. Thereafter defendant was sentenced to confinement in the state penitentiary for a period of one year, and a judgment entered accordingly, from which he has appealed.

A.D Leedy (Leedy & Patterson, on the brief), for appellant.

J.W McCulloch, Dist. Atty., on the brief, for the State.

SLATER J. (after stating the facts as above).

The objections urged against the indictment are that it does not show (1) by whom the check was drawn; (2) that the drawer of the check had any funds in the First National Bank of Heppner; (3) that the check was a valid and subsisting bill of exchange; or had been issued and delivered to F.M. Rounds, or indorsed by Rounds so as to make it negotiable. A chose in action, as a bill of exchange or check, was not at common law the subject-matter of larceny, but has been made so in this state by the statute. B. & C. Comp. § 1798. The methods permissible at common law for describing a chattel in an indictment charging larceny are held to be applicable to the description of the thing made the subject of larceny by statute (2 Bishop's New Criminal Procedure, § 732), and the description of the instrument by its usual name and the amount and face thereof and its value is sufficient (1 McClain on Criminal Law, § 595). In Whalen v. Commonwealth, 90 Va. 544, 19 S.E. 182, an indictment for larceny of "one paper purporting to be a check for the payment of one hundred and twenty-five dollars of the value of one hundred and twenty-five dollars," etc., was held to be a sufficient description. This case cites the case of Commonwealth v. Brettum, 100 Mass. 206, 97 Am.Dec. 95, which holds that, where promissory notes are made by statute the subject of larceny, they may be described in the indictment in the same manner as other things having an intrinsic value; that is, by any description applicable to them as a chattel. The indictment in that case described the property alleged to have been stolen as "one promissory note of the value of," etc. It was held to be sufficient. See, also, State v. Smart, 4 Rich.Law (S.C.) 356, 55 Am.Dec. 683; State v. Pierson, 59 Iowa, 271, 13 N.W. 291. The description contained in this indictment does not give the amount or face value of the check, but it does give other marks of special identification, such as the name of the bank on which it was drawn and the name of the payee. We think, therefore, that the description is sufficient.

Whether the drawer had funds in the bank to the amount of the check is not a matter of substantive allegation, but only a matter of evidence pertaining to the question of value raised by the averment in the indictment that the check was of the value of $60.50. It is further claimed that this allegation is but a conclusion of law, but under all the authorities it is sufficient.

As to the third objection, it is alleged in the indictment that the check was drawn payable to F.M. Rounds, and was the property of said Rounds. This imports that previous to the alleged theft the instrument had been delivered by the maker to Rounds, thereby becoming the property of the latter, and a valid instrument between the parties. For the purpose of showing the instrument to be an instrument of value it is not necessary to specifically set out the fact of liability thereunder, as the liability will appear from the nature of the instrument. 1 McClain on Criminal Law, § 595; 25 Cyc. 77.

To constitute a sound charge of larceny it was not necessary to allege that the check had been indorsed by Rounds so as to make it negotiable. The statute has prescribed, as the essence of a crime, the stealing of a bill of exchange as a thing in action, without any limitation as to the particular character of the paper taken respecting its negotiability. We conclude, therefore, that the indictment was not subject to demurrer.

The check was received in evidence over defendant's objections that upon its face it was of no commercial value; that in its condition it could not be used as property of value by anyone but F.M. Rounds. Upon the face of the check it is payable to Rounds, and there is indorsed thereon, in the handwriting of Rounds, these words: "Pay to the order of"--with his signature written immediately below. But a sufficient blank space intervenes between the words of the order and the signature to permit writing therein the name of a holder in due course. This amounts to an indorsement in blank, rendering the instrument payable to bearer and negotiable by delivery. B. & C. Comp. § 4436. If, however, the indorsement be construed, as contended for by defendant's counsel, to be an order to pay to himself, neither the terms of the instrument, nor its legal effect, have been changed; it was collectible by the payee, and, having been taken without his consent, he was deprived of its value. It is not necessary that the property stolen should be of value to a third person, if valuable to the owner. 2 Roscoe's Criminal Evidence (8th

Ed.) 859; People v. McGrath, 5 Utah, 525, 17 P. 116. There was, therefore, no error in admitting the check in evidence.

When the state had rested its case defendant moved for a directed verdict, for the alleged reason that the state had failed to prove that any crime had been committed by defendant. The deficiency of the proof, it is argued, is that no evidence was offered, tending to show that the drawer of the check W.H. Sterritt, had funds in the bank, upon which he was authorized to draw, to the amount of the check, or that it had been certified to or accepted by the bank, and that unless such proof was offered it was not shown that the check was of any value, and therefore not the subject of larceny. At common law no conviction on the charge of larceny could be had unless the property taken was affirmatively proven to be of some value, at least to the owner; and where the statute does not declare the property to be the subject of larceny, without reference to value, the prosecution must show that the property is of some value. 8 Encyc. of Evidence, 140. The statute (B. & C. Comp. § 1798), in substance, declares that if any person shall steal a bill of exchange or other thing in action he shall be deemed guilty of larceny, and upon conviction thereof, if the property stolen shall exceed in value $35, such person shall be punished by imprisonment in the penitentiary not less than 1 year nor more than 10 years; but if the property stolen shall not exceed the value of $35, such person, upon conviction, shall be punished by imprisonment in the county jail, etc. It is apparent that to sustain a conviction of the higher penalty there must be some competent evidence from which the jury may properly find the value of the thing stolen to be in excess of $35, but the evidence need not be such as would be necessary in an action on the instrument. State v. Smart, 4 Rich.Law (S.C.) 356, 55 Am.Dec. 683. We are satisfied, however, that the evidence as to value was sufficient to go to the jury. F.M. Rounds testified that he received the check from W.H. Sterritt, the drawer, in...