State v. Miller

• Decision Date: 10 July 1930
• Citation: 289 P. 1063,133 Or. 256
• Parties: STATE v. MILLER.
• Court: Oregon Supreme Court

289 P. 1063

133 Or. 256

STATE v. MILLER.

Supreme Court of Oregon

July 10, 1930

In Banc.

Appeal from Circuit Court, Deschutes County; T. E. J. Duffy, Judge.

Joe Miller was convicted of larceny, and he appeals.

Affirmed.

N. G. Wallace, of Bend (Bernard Ramsey, of Bend, on the brief), for appellant.

Ross Farnham, Dist. Atty., of Bend, for the State.

BEAN J.

The defendant was indicted, tried, and convicted of the crime of larceny of a gasoline engine and pump jack, alleged to be the personal property of Louis M. Marriott, and sentenced to be confined in the penitentiary of this state for a period of two years. From this judgment, he appealed.

The facts disclosed by the evidence are that some time prior to the date of the alleged larceny Louis M. Marriott, the prosecutor, owned a certain tract of land upon which there was a deep well and, used in connection with the well and attached thereto, was a pump, a pump jack, and pipes leading into the well for several hundred feet, and the power for pumping was furnished from a certain gas engine. This paraphernalia had been on these premises for some fifteen years.

Mr Marriott, as a witness for the state, testified in part that he lived at Redmond, Or., and as follows:

"Q. Do you own any land in Deschutes County, Oregon? A. No, not any land; just land that I deeded over to a friend. I am interested in the land.

"Q. Do you have control of any land in Deschutes County? A. Only just interested in it.

"Q. Well, are you interested in land in Deschutes County? A. Yes.

"Q. Where is that land located? A. Ten miles west of Redmond.

"Q. And where is it located with reference to the Redmond-Sisters Highway? A. A mile from the McKenzie Highway.

"Q. Which way? A. South.

"Q. A mile south of the McKenzie Highway. And what equipment did you have out on that place about the first of last March? A. I had an engine and deep well out there.

"Q. And where was that located? A. On this ranch."

By an appropriate motion the defendant challenged the testimony, on the part of the state, as insufficient to show that the crime was committed in Deschutes county, Or., and submits that the venue of the offense is a material allegation of the indictment and must be proved. Citing State v Casey, 108 Or. 403, 213 P. 771, 217 P. 632; State v Harvey, 117 Or. 471, 242 P. 440. Defendant contends it was not shown that Redmond is in Deschutes county or state of Oregon; that the boundaries of the city of Redmond are not fixed by public law of this state.

The burden of proving the venue as laid, and beyond a reasonable doubt, is upon the state, though, where the state omits to prove the venue specifically, the jury may infer it from the evidence on both sides. Circumstantial evidence is sufficient to establish venue. Underhill's Crim. Ev. (3d Ed.) § 467.

The city of Redmond was organized under and by virtue of an initiative charter by vote of the electors thereof. The charter adopted was duly filed with the librarian of the Supreme Court library.

Section 3846, Or. L., makes it the duty of incorporated cities or towns in this state to file with the librarian of the Supreme Court library a duly certified copy of the charter and amendments thereto of the incorporated cities or towns adopted through initiative process by the legal voters of such city or town, and declares that when so filed all the courts of the state shall take judicial notice thereof and the same may be referred to and pleaded as a public statute of the state.

An examination of the charter of Redmond discloses that the city of Redmond is located in section 16, Tp. 15 S., R. 13 E., W. M. The testimony shows that the place where the alleged offense occurred is ten miles west of Redmond. The west line of Deschutes county is about twenty miles west of the city of Redmond, making the ranch mentioned in Deschutes county, Or. Moreover, the ranch referred to is mentioned as in Deschutes county. The point contended for by defendant is not well taken. There was no error in this regard.

By an assignment the defendant predicates error upon the holding of the trial court, that the testimony in regard to the ownership of the personal property alleged to have been stolen was proved, as laid in the indictment, in Louis M. Marriott. This assignment raises a very grave question. The trial court was in doubt as to the sufficiency of such testimony. The pump and pump jack attached to the pipe in the well in a wellhouse, or shed, were unquestionably a part of the realty. It did not become personal property until after it was disconnected from the realty. Its asportation and conversion with a felonious intent, after such property was disconnected from the realty by a person, would constitute larceny. State v. Donahue, 75 Or. 409, 144 P. 755, 147 P. 548, 5 A. L. R. 1121; II Wharton Crim. Law, (11th Ed.) p. 1321, § 1099, § 1103, p. 1323; II Wharton Crim. Law (11th Ed.) § 1173 reads, in part, thus: "The property of the stolen goods must be averred to be in the right owner, general or special, if known, or in some person or persons unknown. * * * Or if it appears that the owner of the goods is another and different person from the person named as such in the indictment, the variance will be fatal and the defendant, at common law, must be acquitted. * * *"

The allegation of ownership of stolen goods is supported by proof of any legal interest or special property in them, although less than the absolute title. 36 C.J. p. 860, § 404, Note (a).

As to the space of time necessary to intervene between the severance and the taking to convert the trespass into larceny, a majority of the cases establish the rule that no particular space is necessary, it being necessary only that the two acts be so separated in time as not to constitute one transaction. In some jurisdictions, however, it is held that the act of severance converts the article into a chattel, and no matter how instantaneous its removal may be, the taking is theft, if done without the consent of the owner and with a larcenous intent. Note to State v. Klinkenberg, 49 L. R. A. (N. S.) 965.

In the present case the testimony indicates, in a general way, that the defendant and his helper detached the engine and pump and afterward filled, or attempted to fill up, the well, presumably in an attempt to cover up the taking. The evidence does not suggest that the severance and the asportation of the personalty were one continuous act.

In order to change the character of the property by the severance, it was not necessary for the taker to leave the land or go back to Redmond before he took the property away.

A person was held guilty of larceny of machinery in a factory in State v. Wolf, 6 Pennewill (Del.) 323, 66 A. 739 741, although the severing, or the carrying away, was one continuous transaction. In departing from the ruling in the case of State v. Hall, 5 Har. (Del.) 492, that the severing and the carrying away must be by separate acts in order to constitute larceny, the court said that: "In view of the tendency of the more modern authorities * * * this court have unanimously arrived at the conclusion that we ought to depart from that very technical and unsatisfactory ruling of the earlier law, which was followed by the court in this Harrington case, and that we should hold that there need not be first an act of severance, and after that an actual, separate, and distinct act of taking and carrying away, to constitute a severance and larceny, but that the act of taking and holding and carrying away, at and from the instant of separating it from its connection with the realty--that is, the one continuous transaction of detaching it from its connection with the realty, retaining possession of it, and carrying it away, with intent to commit larceny--amounts to a severance or larceny in law, although the severance and the taking...