State v. Rechnitz
| Decision Date | 21 February 1898 |
| Citation | 52 P. 264,20 Mont. 488 |
| Parties | STATE v. RECHNITZ. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; S. H. McIntire Judge.
Julius Rechnitz was convicted of larceny, and appeals. Reversed and remanded.
H. N Blake and J. M. Clements, for appellant.
C. B Nolan, Atty. Gen., for the State.
Julius Rechnitz, the defendant, and appellant here, and Lottie Kennedy, were accused of the crime of grand larceny. The information charged that on the 14th day of November, 1896 the said defendants willfully and feloniously took, stole, and carried away certain moneys of the value of $125, the property of one Anthony W. Good. The defendants were tried separately, and defendant Rechnitz was convicted of grand larceny, and sentenced to the penitentiary. He filed a motion for a new trial, which was overruled. The appeal to this court is from the final judgment of conviction.
The court gave to the jury the statutory definition of larceny in part as follows: "The penal Code of Montana (section 880) defines larceny as follows: 'Every person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, takes from the possession of the true owner, or, of any other person, or obtains from such possession by color or aid or fraudulent or false representation or pretense, or of any false token or writing, or secretes, withholds or appropriates to his own use, or that of any other person than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind, is guilty of larceny."' It also charged that there must exist a union or joint operation of act and intent, or of act and criminal negligence, and then gave the following instruction: "In order to find the defendant guilty of the crime of grand larceny as charged in the information, the jury must be satisfied from the evidence beyond a reasonable doubt that Lottie Kennedy took the money described in the information from the possession of the owner thereof, with intent to deprive or defraud such owner of his property, and that the defendant Rechnitz either aided or abetted the said Lottie Kennedy in taking the said money, or in secreting, withholding, or appropriating the same to his own use, or to the use of the said Lottie Kennedy, with intent to deprive the owner of his property; and, unless the jury are so satisfied, they should acquit the defendant." The appellant now insists that this latter instruction was an erroneous statement of the law of larceny, inasmuch as the charge omitted the term "feloniously," or any other equivalent words, which would indicate to the jury that in larceny a felonious intent is necessary to authorize a conviction. There is a fundamental principle of the law of larceny that an act of trespass and a superadded intent to steal are essential to constitute the crime. And, generally speaking, as crime proceeds alone from a criminal mind, there can be no crime without such evil mind. 1 Bish. New Cr. Law, § 288. The wisdom of the law upon this subject finds its place in our Penal Code, which expressly declares that in every crime there must be a joint operation of act and intention, or of act and criminal negligence. "Actus non facit reum nisi mens sit rea," is the maxim, as given by Broom (301), that has found approval in law from ancient to modern times. And while this rule on mens rea has been pronounced by so learned a judge as Sir James Fitzjames Stephen in an opinion recently rendered by him in Reg. v. Tolson, 23 Q. B. Div. 184, as "too short and antithetical to be of much practical value," yet the principle involved is tenaciously upheld, and he thus states it: Under the common law, to make a taking larceny, it must have been felonious. A wrongful taking of another's property did not necessarily constitute larceny. By larceny was meant an intentional taking, a taking without claim of right, a taking in knowing disregard of the rights of the owner, a taking with the intention of stealing. 2 Russ. Crimes, 146. Larceny, a word derived from the Norman French "larcyn," "signifies a felonious, wrongful, and fraudulent taking and carrying away by any person, of the personal goods of another, with the felonious intent to convert them to his own use, and make them his own property, without the consent of the owner." Rap. Larceny, § 1. These older views of what was a larceny have, to some extent, been modified by accurate statutory definitions, so that now several of the elements that were once essential to complete the crime need not be proven. But the mental element of any larceny must, we think, be still marked by using the word "feloniously," or by equivalent words. There must be accompanying the taking an evil intention. It has been long settled that in an indictment for a common-law felony it is necessary to aver that the act charged to have been done was done "feloniously." Hawk. P. C. bk. 2, c. 25, § 55. The word "feloniously" is descriptive of the act charged. It means that the act was done with a mind bent on doing that which is wrong, or, "as it has been sometimes said, with a guilty mind." Hawkins, J., in Reg. v. Tolson, supra. And, after fully considering the statute of this state defining larceny, we have found ourselves unable to construe it without importing into its meaning the qualification ordinarily imported in the construction of criminal statutes, namely, that there must be a guilty mind, as well as a guilty act, to constitute a crime. "A statute," says Bish. Cr. Law, § 291, "is simply a fresh particle of legal matter dropped into the previously existing ocean of law." The principles which controlled before the adoption of a statutory rule should be applied afterwards as before, that the reason of the enactment may be correctly arrived at, and rational constructions obtain.
Under these rules we have arrived at the conclusion that there must be a mind at fault before there can be the crime of larceny. Any other construction would authorize a conviction of a sheriff who takes under process of a court, and intends to deprive the owner of his property; or...
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