State v. Minnick

• Decision Date: 08 June 1909
• Citation: 102 P. 605,54 Or. 86
• Parties: STATE v. MINNICK.
• Court: Oregon Supreme Court

102 P. 605

54 Or. 86

STATE v. MINNICK.

Supreme Court of Oregon

June 8, 1909

Appeal from Circuit Court, Union County; J.W. Knowles, Judge.

John Minnick was convicted of grand larceny, and appeals. Reversed and remanded, with directions.

Appellant was indicted, tried, and convicted in the circuit court of Union county upon an indictment charging him with the larceny of two heifers. He was sentenced to one year in the penitentiary, and, being dissatisfied, appeals.

Those portions of the indictment material to this opinion are as follows: "John Minnick is accused by the grand jury of the county of Union and state of Oregon by this indictment of the crime of larceny of two heifers, committed as follows The said John Minnick, on the 25th day of March, 1908, in the county of Union and state of Oregon, did then and there take steal, and carry away and then and there take, steal, drive and lead away, two heifers, then and there the personal property of one W.A. Ogden and said personal property then and there of the value of thirty dollars." There was no demurrer or motion to set aside the indictment.

The court instructed the jury, among other things, as follows "(1) I instruct you that larceny consists in the felonious taking, stealing, and carrying away of the property of another, and if you find in the evidence in this case beyond a reasonable doubt, that the defendant, John Minnick, in Union county, Ore., on or about the 25th day of March, 1908, feloniously took, stole, and carried away, or drove away, the two heifers described in the indictment, or either of them, and that the heifers or either of them, at the time, were the property of one W.A. Ogden, mentioned in the indictment, and were of some value, then it will be your duty to find the defendant guilty as charged in the indictment. (2) I instruct you that if you believe from the evidence, beyond a reasonable doubt, that the animals mentioned in the indictment or either of them were stolen from W.A. Ogden, and that W.A. Ogden was the owner thereof, and that shortly after the theft the same was found in the possession of the defendant, and defendant has failed to explain how he obtained such possession, his failure to make such explanation may be considered by you as a circumstance tending to show defendant's guilt and given such weight as you deem proper in connection with the other evidence in the case."

And, at defendant's request, the court gave the following instructions: "(1) Where the finder of goods does not know the owner, and has nothing to indicate who the owner may be, or where he may be found, his appropriation of the goods or property will not constitute larceny. (2) To constitute larceny there must be a simultaneous combination of unlawful taking, asportation, and felonious intent. (3) I instruct you that if you find that at the time the defendant took possession of the two heifers described in the indictment, and at the time he sold them to Mr. Gale, he believed them to be his own, then it is immaterial whether he cut off a part of one of the ears, as he would have a right to do as he pleased, believing them to be his own property. (4) The fact that the defendant, after Mr. Ogden had taken possession of the two heifers, offered to buy them, is not of itself any evidence of guilt, provided he had prior to that time entertained an honest belief that the two heifers were his property, and he would have a right to buy the same of Mr. Ogden or make any settlement with him to avoid any further trouble concerning the same. (5) You should view with caution the testimony of a witness of conversations heard over the telephone, as it is evident for hearing and understanding correctly is not so good as being present and hearing a conversation. (6) I instruct you there can be no larceny of property where the defendant honestly believes the property to be his own, even though the property in controversy might belong to another. The fact of his not being the owner is entirely immaterial so long as he entertains an honest belief of his ownership."

The court further instructed the jury as to the weight of evidence and reasonable doubt, fully covering statutory requirements. The following instructions requested by defendant were refused: "(1) I request you to return a verdict for the defendant. (2) I instruct you that it you find from the evidence in this case that the two heifers described in the indictment came to the defendant's place with his other cattle, and that he let them run with his cattle during the winter, and took care of them with his others, and at the time they came into his possession he did not intend to steal them, but the intention to steal them came upon him later, and in pursuance to this intention, formed afterwards, he did convert the same to his own use by selling them, this would not constitute larceny, and in that case your verdict should be for the defendant. (3) I instruct you that in this case, before you can find the defendant guilty, you must be satisfied beyond a reasonable doubt that, at the time the two heifers came to the defendant's place, he then and there intended to steal them, and there must be some facts or circumstances indicating such intention other than allowing the same to run with his cattle, and the fact that he afterwards sold them is not of itself proof of an original intent to steal the said animals. (4) In order to constitute larceny, the defendant must have intended to appropriate the animals to his own use, at the time they first came into his possession, and that a conversion in pursuance of a subsequently formed intention would not make him guilty of larceny. (5) The indictment in this case alleges that the two heifers are of the value of the sum of $30, and, the value being thus alleged, the state must prove the value as alleged, to your satisfaction beyond a reasonable doubt, before you can find the defendant guilty."

Leroy Lomax, for appellant.

F.S. Ivanhoe and A.M. Crawford, for the State.

McBRIDE, J. (after stating the facts as above).

The first objection urged by appellant is that the indictment does not state facts sufficient to constitute a crime. There was no demurrer or motion to set aside the indictment, and if, taking the indictment as a whole, the essential elements constituting the offense of larceny can be found in it, the objection must be overruled. It is substantially charged that the defendant took, carried, stole, led, and drove away two heifers, contrary to the statutes. The word "feloniously" is not used in connection with taking; but, if larceny is otherwise described, the omission of that word...