State v. Rathbone

• Decision Date: 16 December 1901
• Citation: 8 Idaho 161,67 P. 186
• Parties: STATE v. RATHBONE
• Court: Idaho Supreme Court

67 P. 186

8 Idaho 161

STATE v. RATHBONE

Supreme Court of Idaho

December 16, 1901

INFORMATION-DESCRIPTION OF STOLEN PROPERTY.-Where the information charges larceny in the felonious taking of two mares, it is sufficient.

CRIMINAL LAW-BILL OF PARTICULARS.-The prosecuting officer is not required to furnish a bill of particulars. It is not a statutory right and is discretionary with the trial court.

VERDICT-CONFLICT OF EVIDENCE.-Where there is a substantial conflict in the evidence, the action of the trial court will not be disturbed.

CRIMINAL LAW-INSTRUCTIONS.-Where the trial court fully and fairly instructs the jury on all the issues involved, it is not error to refuse to give instructions requested by defendant involving the same questions.

(Syllabus by the court.)

APPEAL from District Court, Lincoln County.

Affirmed.

Hawley & Puckett and John W. Hobbs, for Appellant.

An indictment should be direct and certain as to the offense charged and the particular circumstances when they are necessary to constitute a complete defense. (People v Saviers, 14 Cal. 29.) The indictment should set forth the facts and circumstances of the alleged offense, so that the accused may be prepared for his defense. (People v Hood, 6 Cal. 236; People v. Wallace, 9 Cal 30.) Defendant's motion for bill of particulars should have been allowed. (Wharton's Criminal Procedure and Practice, 8th ed., 702 et seq.; Rex v. Hodson, 3 Car. & P. 422; Rex v. Bootyman, 5 Car. & P. 300; Rex v. Downing, 4 Ad. & E. 699; Wharton's Criminal Pleading and Practice, 8th ed., p. 464, note 1.) In a criminal case, a bill of particulars is required whenever the indictment fails to give notice of the special matter intended to be proved. (Williams v. Commonwealth, 91 Pa. 493; Commonwealth v. Snelling, 15 Pick. 329; People v. Bellowes, 1 How. Pr. 149; People v. McKinley, 10 Mich. 54.) A prosecutor cannot maintain larceny for goods taken from him with his consent. It is necessary for the prosecution to prove want of consent. (State v. Moon, 41 Wis. 684; Witt v. State, 9 Mo. 671; Anderson v. State, 14 Tex. App. 49; Wrestle v. State, 14 Tex. App. 175; Wilson v. State, 45 Tex. 76, 23 Am. Rep. 602; People v. Murphy, 47 Cal. 103.) "There can be no doubt that in an indictment or information for larceny, where the stolen property is not otherwise described so as to identify the offense, the allegation of ownership is a material part of the description of the offense charged." (People v. Wallace, 94 Cal. 497, 29 P. 950.) To the same effect are: People v. Hughes, 41 Cal. 234; Clark v. State, 29 Tex. App. 437, 16 S.W. 171; Sharp v. State, 29 Tex. App. 211, 15 S.W. 176; McDowell v. State, 68 Miss. 348, 8 So. 508; People v. Hall, 19 Cal. 425; Bishop's Criminal Procedure, 3d ed., 718, 723, 752, 4886; Allen v. State, 42 Tex. 517; Murray v. Trinidad Nat. Bank, 5 Colo. App. 359, 38 P. 615; Chavez v. Territory, 6 N. Mex. 455, 30 P. 903; Heber v. State, 7 Tex. 69; Poag v. State, 40 Tex. 151; Burke v. State, 25 Tex. App. 172, 7 S.W. 873; Harwell v. State, 22 Tex. App. 251, 2 S.W. 606; Childers v. State, 37 Tex. Cr. Rep. 392, 35 S.W. 654.

Attorney General Frank Martin, for the State.

The information in the case at bar states: "That one Ernest Rathbone, on the fourteenth day of August, A. D. 1900, in the county of Lincoln, and state of Idaho did then and there feloniously steal, take and drive away two mares, the personal property of another." This would seem sufficiently direct and certain to enable the defendant to prepare for his trial, and to know what he is to meet. (People v. Littlefield, 5 Cal. 355.) The words used in the information in this case charges the offense in almost the identical language of the statute, which is usually sufficient. (People v. Butler, 1 Idaho 231; State v. Ellington, 4 Idaho 529, 43 P. 60; People v. Russell, 81 Cal. 617, 23 P. 418; State v. McGaffin, 36 Kan. 315, 13 P. 560.) Our statute makes no provision for the defendant being furnished a bill of particulars in a criminal case. An information or indictment under our statute is required to state the offense in ordinary and concise language, and with such definiteness that the defendant may know the exact charge that he is to meet. Such practice is unknown in states with a criminal code similar to ours. And in states where, under the statutes, the court may make an order for a bill of particulars, the granting or refusing of such an order is solely within the discretion of the trial court. (People v. Tweed, 63 N.Y. 194; Tilton v. Beecher, 59 N.Y. 176, 17 Am. Rep. 337; People v. Alviso, 55 Cal. 232.) The next error assigned by appellant is the refusal of the court to grant a new trial upon the insufficiency of the evidence. We think that an examination of the evidence in this case sufficiently shows that the animals in question were stolen; that they were taken from the range in Lincoln county where they were running, and shipped out of the country without the consent or authority of the owner. The supreme court of California, in passing upon this question, used the following language: "It is not necessary to allege in the indictment or information for larceny that the property was taken against the will of the owner. Consent of the owner to the taking is matter simply of defense, and need not be averred or proved by the prosecution." (People v. Davis, 97 Cal. 194, 31 P. 1109; State v. Haverly, 4 Idaho 484, 42 P. 506; Chamberlain v. Woodin, 2 Idaho 642, 23 P. 177; Smith v. Thomas, 121 Cal. 533, 54 P. 71; People v. Un Dong, 106 Cal. 83, 39 P. 12; People v. Lewis, 124 Cal. 551, 57 P. 470; Simpson v. Remington, 6 Idaho 681, 59 P. 360.) Section 7683 of the Revised Statutes of Idaho is as follows: "When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material." (People v. Smith, 112 Cal. 333, 44 P. 663; People v. Prather, 120 Cal. 660, 53 P. 259; People v. Watson, 72 Cal. 402, 14 P. 97; Commonwealth v. Buckley, 148 Mass. 27, 18 N.E. 577, 1 L. R. A. 624.) When one takes the stock of another to feed or pasture for the owner, and it is stolen from his possession, the ownership of the property may be alleged in the one from whose possession it was taken. (People v. Buelna, 81 Cal. 135, 22 P. 396.)

STOCKSLAGER, J. Sullivan, J., QUARLES, C. J., concurring.

OPINION

STOCKSLAGER, J.

The county attorney of Lincoln county charged defendant with the crime of grand larceny. After the usual allegations, the information charges that one Ernest Rathbone, on the fourteenth day of August, 1900, in the county of Lincoln, and state of Idaho did then and there feloniously steal, take, and drive away two mares, the personal property of another, to wit, the personal property of George M. Brown, all which is contrary to the form of the statutes, etc. Counsel for defendant demurred to this information, alleging: "1. Said information does not state a public offense. 2. Said information does not substantially conform to the requirements of section 7679 of the Revised Statutes, in that the said information is not direct and certain in regard to the offense, charged, and more particularly for the reason that it does not give a particular description, or any description, of the animals alleged to have been stolen. 3. Said information does not substantially conform to the requirements of section 7678 of the Revised Statutes of Idaho in this: that it does not contain a statement of the facts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and more particularly in that said information does not give any description of the animals therein alleged to have been stolen by defendant, or either of them. 4. More than one offense is charged in the information herein, in that two mares are alleged to have been stolen, and that the stealing of each of said mares, if they were stolen at all, was a separate and distinct offense." This demurrer was overruled by the court, which is assigned as error.

The defendant demanded a bill of particulars from the county attorney, which was refused by said officer, whereupon he filed his motion, supported by affidavit, and presented it to the court, to wit: "Comes now the defendant herein and moves the court for an order requiring the county attorney of Lincoln county, Idaho the prosecutor herein, to give and furnish the defendant with a particular description of the mares, and each of them, charged in the information to have been stolen by the defendant." This motion was denied by the court, which is assigned as error.

The defendant then moved to set aside the information, based upon the following grounds: "a. Defendant has never had a preliminary examination upon the offense charged in the information, and has never been held upon said charge to answer before this court. b. At a preliminary examination had before W. J. Smith, justice of the peace, of Shoshone precinct, in said Lincoln county, state of Idaho on January 11, 1901, said preliminary examination being the basis and foundation of this prosecution, and the so-called depositions therein having been filed in this court upon January 14 1901, the depositions of the several witnesses examined thereat, to wit, George M. Brown, J. D. McCoy, and Vance L. Stowell, said persons being all of the witnesses examined at said preliminary examination, were not read to said witnesses, or to either or any of them, and corrected or added to, until such depositions conformed to what said witnesses, or either or any of them, declared to be the truth. c. That none of the...