State v. Meldrum

• Court: Oregon Supreme Court
• Writing for the Court: BEAN, J.
• Citation: State v. Meldrum, 41 Or. 380, 70 P. 526 (Or. 1902)
• Decision Date: 03 November 1902
• Parties: STATE v. MELDRUM. [*]

70 P. 526

41 Or. 380

STATE v. MELDRUM. ^[*]

Supreme Court of Oregon

November 3, 1902

Appeal from circuit court, Baker county; Robert Eakin, Judge.

Alexander Meldrum was convicted of larceny, and appeals. Affirmed.

Chas F. Hyde and Geo. J. Bentley, for appellant.

D.R.N Blackburn, Atty. Gen., and Samuel White, Dist. Atty., for the State.

BEAN J.

The defendant and one Manny Howard were jointly charged by an information filed by the district attorney of the Eighth judicial district with the crime of larceny by stealing a mare, the property of R.R. Palmer and H.E. Denham. The defendants severed on their trial. Meldrum was convicted, and appeals. The evidence against him tended to show that in the spring of 1901 he and Howard, assisted by two or three others, were engaged in gathering horses from the range a few miles from Baker City for shipment. Palmer, one of the owners of the mare alleged to have been stolen, passed them on the road, and told them he had a mare on the range branded I.C., which he asked them to keep a lookout for. This they promised to do, Meldrum saying that, if he found any of Palmer's horses down by his place, he would take them up and hold them for him, to which Palmer answered, "All right." A few days later the mare in question was found and driven by them, with some other animals, to what is known as the "Deal Corral," about 16 miles from Baker City, where on the following morning they changed her brand from I.C. to H.O., by what is known as the "picking process." She was then driven with other stock to Meldrum's place, some 15 or 16 miles farther away from the range and the home of her owners. The defendants gave no information to the owners of the mare, or either of them, about their having her in their possession; but, after she had been kept at the Meldrum place about a week, Palmer heard of it, and telephoned Howard, who said, "Yes," they had the mare, asked what they should do with her, and was told to leave her in Palmer's field when he came down to Baker City the following Thursday. On the next morning, however, he and his codefendant started with a band of stock to Ontario. When Palmer learned of this, he went out to the Meldrum farm, met Meldrum just before reaching there, and told him that he had come for his mare. Meldrum said he did not think she belonged to him, because she had an H.O. brand. Palmer, however, went out to the field and got the mare, identifying her notwithstanding the change in the brand.

Assuming these facts to be true, the important question on this appeal is whether the defendant Meldrum could be legally convicted of the crime of larceny, as charged in the information filed against him. It is argued that, because the owners authorized or requested him and his codefendant to take the mare up if they found her on the range, there could have been no felonious intent in the taking, and hence no crime, whatever may have been their subsequent conduct, or whatever disposition they may have intended to make of the animal. It is familiar law that where property is delivered by the owner to another, and is received bona fide and in good faith, the subsequent wrongful conversion pending possession will not support an indictment for larceny in the original taking. If, however, the property was received or taken by the defendant with a felonious intent at the time he is guilty of larceny, even though it was by the owner's permission. This is so because a felonious intent is a necessary ingredient of every larceny, and such an intent must exist at the time of the taking. The question of its existence is one of fact for the jury, which they may infer from the words or acts of the defendant, or from the nature of the transaction. 2 Arch.Cr.Pl. & Prac. 366; 2 Bish.Cr.Law (7th Ed.) § 864; Hill v. State, 57 Wis. 377, 15 N.W. 445. Thus, in Semple's Case, 1 Leach, 420, the prosecutor was a coach maker, who let out carriages for hire. The prisoner hired a chaise of him, at the rate of five shillings a day during the time for which he should keep it, saying that he wanted it for three or four weeks. A few days afterward he took the chaise from the owner, but never returned it, nor could any tidings be obtained of him for twelve months thereafter, when he was accidentally discovered and apprehended. On this state of facts, it was argued by the prisoner's counsel that the offense did not amount to a felony, because the prisoner had obtained legal possession of the property upon a contract, and that at most he had only been guilty of a breach of contract. But the court held that the question of the prisoner's intent in taking or receiving the chaise was a matter for the jury, saying: "It is now settled that the question of intention is for the consideration of the jury; and in the present case, if they should be of opinion that the original hiring of the chaise was felonious, it will fall precisely within the principle of Pear's Case , and the other decisions which the judges have made upon the subject of constructive felony. If there was a bona fide hiring of the chaise, to pay so much for every day for the use of it, and a real intention of returning it, a subsequent conversion of it cannot be felony, whether the time for which it was hired be limited or indefinite. *** But on the other hand, if the hiring was only a pretense made use of to get the chaise out of the possession of the owner, without any intention to restore it or to pay for it, in that case the law supposes the possession still to reside with the owner, though the property itself is gone out of his hands, and then the subsequent conversion will be felony." In Com. v. James, 1 Pick. 375, it was in evidence that the prosecutor, having a quantity of...