State v. McKee

• Decision Date: 10 June 1898
• Citation: 53 P. 733,17 Utah 370
• Court: Utah Supreme Court
• Parties: STATE v. JAMES J. McKEE

53 P. 733

17 Utah 370

STATE v. JAMES J. McKEE

Supreme Court of Utah

June 10, 1898

Appeal from the fourth district court; W. N. Dusenberry, Judge.

James McKee was convicted of larceny, and appeals.

Affirmed.

Rhodes & Williams, for appellant.

No brief filed.

A. C Bishop, Attorney General, for state; C. S. Valrian and S. R Thurman, of counsel.

These are mostly cases in which a variance was claimed to exist between the information and the proof, and the courts have uniformly held that wherever, from the whole record, it could be ascertained that the offense proven and the offense charged was the same, the variance as to the party injured was immaterial. People v. Aris, 26 P. 766; People v. Edwards, 59 Cal. 369; People v Bittencort, 15 P. 744; People v. Main, 46 P. 612; Martin v. Territory, 43 P. 1067.

In Utah the information may not be set aside upon motion except in the specified case, which is presented and determined upon the face, and by an inspection of the information itself. The California statute is mandatory in requiring the information to be set aside when the defendant has not been legally committed before the filing thereof. In the one case the question is determined by the record in the superior court, i. e., the information itself. In the other, necessarily by extrinsic evidence, record or otherwise. The phrase "legally committed" is held by the California court to refer to the examination of the case and the holding of the defendant to answer. Ex parte Baker, 88 Cal. 84; People v. Sehorn, 116 Cal. 507.

The Utah statute conforms to the general rule relative to quashing indictments or informations, which is to confine the motion to errors or irregularities apparent upon the face of the indictment.

There are exceptions to the rule based upon defects in the constitution or impropriety in the action of the grand jury. Wharton Crim. Pled. and Prac. 9th Ed No. 388.

Our statute states the sole ground upon which an information may be set aside upon motion. This is held to be exclusive. United States v. Cutler, 5 Utah 609; People v. Schmidt, 64 Cal. 260.

The following authorities support the proposition that the name of the owner of stolen property is not a material element of the offense, but is required to be stated in the indictment to identify the act, and that other description might take its place if it is furnished sufficient identification. C. L. Vol. II, No. 4935; Revised Statutes No. 4738; People v. Long Quong, 60 Cal. 107; People v. Hughes, 41 Cal. 235; People v. Potter, 35 Cal. 110; People v. Smith, 112 Cal. 335.

That there is some confusion in the California cases, as admitted in appellant's brief, is clear. We will not attempt to discuss all of these decisions. The California code differs from ours in not requiring any recital in the information of a prior commitment. Deering's Penal Code, No. 809, No. 965. People v. Shubrick, 57 Cal. supra.

People v. Wallace 94 Cal. 499, is cited in support of the appeal. There were no depositions in this case, nor was there any written commitment. Therefore, as held by the court, the district attorney had no authority to look for the description of the offense beyond the complaint laid before the magistrate. There being no attempt to identify the offense other than by averment of the ownership in the complaint and information upon the face of the record, it appeared the offenses were not the same. The court affirmed the rule announced in its prior decisions, restricting the district attorney in the information to the facts appearing in the depositions returned if any, otherwise to the offense as charged in the commitment. See People v. Lee Ah Chuck, 66 Cal. 663; People v. Vierra, 67 Cal. 231; People v. Parker. 91 Cal. 92; People v. Staple, 91 Cal. 26.

But when the circumstances do not arrange themselves in the form of a chain, and do not support each other in the sense that if one fails the chain is broken, the rule does not apply. Such was the case at bar. There was positive evidence, sufficient of itself to convict. There was also a group of isolated facts, all with more or less force pointing toward guilt. Clare v. People, 9 Col. 122; People v. Phipps, 39 Cal. 333; People v. Anthong, 56 Cal. 397; Tompkins v. State, 32 Ala. 569; State v. Maxwell, 42 Ia. 213; State v. Hayden, 45 Ia 17; Bressler v. People, 117 Ill. 422; s. c., 3 N.E. 527; Brady v. Com., II. Bush. 285.

If the court by inadvertence or otherwise in his charge to the jury stated the law incorrectly, or made any improper statement, prejudicial to the defendant, it was the duty of counsel conducting the defense to point out the objectionable feature and give the court an opportunity to correct it. A failure to do so, was a waiver of the objection even though the charge was erroneous. Marks v. Thompkins, 7 Utah 425; People v. Theide, 39 P. 847; Thirkfield v. Sanitary Association, 12 Utah 76; Farr v. Swigart, 13 Utah 160-61; Lowe v. Salt Lake City, 13 Utah 99. See also Hickory v. United States, 151 U.S. 316; Mobile & Mont. R. Co. v. Jurey, 11 U.S. 596; Thompson on Trials, vol. 2, sec. 2394.

The state contends that the unlawful taking of the property without color or claim of right, with intent to permanently deprive the owner of his property, constitutes the offense of grand larceny, without regard to what the defendant does with the property or intends to do with it after it is taken. Desty Am. Crim. Law, No. 145a 8, and cases cited, Hamilton v. State, 35 Miss. 214; People v. Juarez, 28 Cal. 380; State v. Ware, 10 Ala. 814; Williams v. State, 52 Ala. 411; Regina v. White, 3 C. & P. 345; 2 Bishop Crim. Law, 7th Ed. 848; 2 Bishop Crim. Law, 7th Ed. 342; Keely v. State, 14 Ind. 36; State v. Davis, 9 Vroom 176; Dignowitty v. State, 17 Tex. 521; State v. Fenn, 41 Conn. 590; Regina v. Jones, I. Den. C. C. 188; Rex v. Cabbage, Russ & Ry. 292; State v. Ryan, 12 Nev. 402; State v. Slingulard, 19 Nev. 137; State v. Ward, 19 Nev. 297; State v. South, 28 N. J. L. 28; State v. Davis, 38 N. J. L 177; People v. Flynn, 7 Utah 378.

ZANE, C. J. BARTCH, J., concurs. MINER, J., dissents.

OPINION

ZANE, C. J.:

This is an appeal from a judgment of the district court, rendered on August 26, 1897, sentencing defendant to the state prison for the term of five years, upon a verdict finding him guilty of the crime of grand larceny. Before entering his plea of not guilty, the defendant submitted a motion to set aside the information, upon the ground that he had not been committed for the crime described in it, after an examination by a magistrate. Stated more definitely, the ground was that his examination and commitment was upon the charge of having stolen 700 buck sheep, the property of John H. Reader and nine others naming them, when the information filed in the district court charged him with stealing 91 buck sheep, the property of John H. Reader, and a lesser number, the property of each of five other of the men named in the commitment. The commitment stated, in effect, the sheep were the common property of ten individuals, when the information charged they were owned individually my six of the same ten. One ownership was alleged to be joint; the other, several. The name of the owner of stolen property is no part of the crime. It is stated in indictments and informations as a matter of description,--as the particular species or stock of the animal stolen, or as the kind, quality or peculiarity of other personal property taken may be mentioned. The statute defines larceny to be "the felonious stealing, taking, carrying, leading, or driving away the personal property of another." The name of the owner is mentioned for the purpose of identification,--for greater certainty, so that it may be ascertained that the defendant was convicted or acquitted, as the case may have been, of a certain offense; that the defendant may not he again prosecuted for the same offense; or, if prosecuted for another offense, that it may not be mistaken for the one of which he was convicted or acquitted.

The question presented for decision is, did it sufficiently appear upon the motion that the defendant had been examined and committed for the offense charged in the information? The information alleges that defendant, on the 19th day of July at the county of Uinta and state of Utah, had been duly bound over by Leon R. Pack, a committing magistrate of that county, for the commission of the crime described in the information. The defendant, on the hearing of the motion, introduced in evidence a commitment, and a complaint made part of it by reference, which showed a commitment by the same magistrate mentioned in the information, and on the same day, and at the same county, for the larceny of the same kind of sheep owned by 6 of the 10 men named in the commitment, the variance relied upon being that the ownership in the commitment was alleged to be joint, while that in the information was alleged to be several. We are of the opinion that the presumption arising from the allegation of the prosecuting attorney in the information that the defendant had been duly committed for the offense charged, and from a comparison of the facts stated in the complaint to the committing magistrate, and in the commitment by him, in evidence on the motion, with those stated in the information, was not overcome by the variance relied upon by the defendant. The ownership of the sheep was not the only fact by which to identify the particular conduct of the defendant,--the transaction investigated by the magistrate. The particular time, place, description of the property, and other attending and surrounding circumstances of the act or occurrences,--the transaction,--may all be resorted to for the identification of the crime. Section 4935, Comp. Laws Uta...