State v. Savage

• Decision Date: 02 April 1900
• Citation: 60 P. 610,36 Or. 191
• Parties: STATE v. SAVAGE.
• Court: Oregon Supreme Court

60 P. 610

36 Or. 191

STATE v. SAVAGE.

Supreme Court of Oregon

April 2, 1900

Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.

Otis Savage was convicted of grand larceny, and he appeals. Affirmed.

The defendant Otis Savage was jointly indicted with Frank Klein for the crime of larceny. The indictment charged that said Otis Savage and Frank Klein on the 13th day of October, 1894 in the county of Wasco and state of Oregon, in a certain office in Dalles City, in said county, then and there occupied by the Pacific Express Company, a corporation incorporated under the laws of the state of Nebraska, and then and there lawfully doing business in said city, county and state as an express company, and engaged in the express business in said state (the same being the express office of said company), unlawfully and feloniously did take, steal and carry away $14,000, current gold and silver coin of the United States, of the value of $14,000 lawful money of the United States, and then and there the money and property of said Pacific Express Company (the denomination of said money being to the grand jury unknown), contrary, etc. A demurrer to the indictment on the ground, inter alia, that it charged more than one offense, having been overruled, a plea of not guilty was entered, and, a separate trial being had, the following verdict was returned: "We, the jury in the above-entitled cause, impaneled to try the defendant Otis Savage only, find said Otis Savage guilty of larceny only and assess the value of the coin stolen at $14,000. Whereupon the defendant was sentenced to imprisonment in the penitentiary for the term of four years, from which judgment he appeals.

A.S. Bennett and H.S. Wilson, for appellant.

D.R.N. Blackburn, Atty. Gen., for the State.

MOORE J. (after stating the facts).

It is contended by defendant's counsel that the indictment charges grand larceny and larceny from a building, and that the court erred in overruling the demurrer to the duplicity. The statute, in prescribing the manner of stating the facts constituting an offense, provides that the indictment must charge but one crime, and in one form only. Hill's Ann.Laws Or. § 1273. It is also provided that in all cases the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment. Id. § 1383. The statutes which it is claimed the indictment charges a violation of, as far as applicable herein, are as follows: "If any person shall steal any goods or chattels *** the property of another, such person shall be deemed guilty of larceny, and upon conviction thereof, if the property stolen shall exceed in value thirty-five dollars, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years." Id. § 1763. "If any person shall commit the crime of larceny in any *** office *** such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than seven years." Id. § 1764. It is argued that larceny in an office always comprises petit larceny, under the assumption that the property taken is of some value, but that larceny in such building does not necessarily include the taking of goods or chattels the value of which would render the offense grand larceny, and that the defendant, having been charged in the indictment with the crime of larceny in an office, could not be found guilty of grand larceny. Larceny at common law was classed as simple larceny and larceny accompanied with violence or putting in fear, which was denominated "robbery." Simple larceny was subdivided into grand larceny, which consisted in the felonious taking of goods above the value of twelvepence, and petit larceny, in which the value of the property so taken was twelvepence or under. 1 Hale, P.C. 503. Simple larceny was unaccompanied with any atrocious circumstance, while mixed or compound larceny included the aggravation of a taking from one's house or person. 4 Bl.Comm. 229. According to this classification, larceny in an office is plain theft, aggravated by the circumstance of the place in which the personal property feloniously taken is kept or stored, and necessarily includes simple larceny; and, as simple larceny embraces within its subdivisions grand larceny, it would seem to follow, notwithstanding a conflict in the decisions ( Stone v. State [Ala.] 22 So. 275), that, in those states in which grand and petit larceny are designated as different degrees of the same offense, larceny in an office, when the value of the property so taken brings the crime within the higher grade, necessarily includes grand larceny. But, however this may be, the legislative assembly of this state has never subdivided simple larceny, or by any act denominated such crimes as grand or petit larceny. The statute, in prescribing the mode of punishment, provides that, if the property stolen shall exceed in value $35, the party convicted thereof shall be punished by imprisonment in the penitentiary not less than one nor more than ten years, but, if the property feloniously taken shall not exceed the value of $35, such person, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than one year, or by fine not less than $25 nor more than $100. Hill's Ann.Laws Or. § 1763. Larceny of goods in a building renders the person convicted thereof subject to punishment by imprisonment in the penitentiary not less than one nor more than seven years, regardless of the value of the property feloniously taken. Id. § 1764. It will thus b seen that the grade of the offense is not measured by such value, nor by the penalty imposed for a violation of the property rights of another, but is determined by the circumstances which aggravate the taking. In an indictment for larceny in an office, the value of the property stolen is, therefore, immaterial, but when such value is alleged the party accused of the crime is thereby notified in this respect. In State v. Hanlon, 32 Or. 95, 48 P. 353, it was held that, under an indictment charging larceny from a shop, a defendant might be convicted of simple larceny, if the indictment alleged the value of the personal property taken. See, also, Fanning v. State, 12 Lea, 651. The indictment herein having charged larceny in an office, the specification necessarily included simple larceny; and, the value of the property stolen having been averred, no error was committed in overruling the demurrer.

The defendant, in support of a motion for a change of venue filed an affidavit in which he stated, in effect, that immediately after the alleged larceny of the money mentioned in the indictment the Pacific Express Company offered, by public advertisement, a reward of 10 per cent. of the amount recovered, and the sum of $250, for the conviction of each person implicated in the alleged theft; that T.J. Driver, sheriff of Wasco county, received or claims to be entitled to the sum of $1,400 for recovering $14,000 from the possession of the defendant Frank Klein, and that he expects to secure $250 additional in the event of defendant's conviction; that Driver is very bitter and vindictive against defendant, having frequently expressed the opinion that he was guilty of the offense charged, and, as deponent verily believes, will use every means within his power, lawful or otherwise, to secure such conviction; that Driver, by reason of his prejudice, interest, and activity, is disqualified to serve any process in the action, and that the officers associated with him as deputies are also disqualified for the same reason; that this cause has been much talked about, as deponent verily believes and is credibly informed, throughout said county, and great difficulty will be encountered in securing qualified jurors; and that a fair and impartial trial cannot be had in said county. T.J. Driver filed a counter affidavit, in which he denied that he received or claimed that he was entitled to the sum of $1,400 as a reward, and further stated that he had been paid by the Pacific Express Company all the reward he asked, and did not expect to receive $250, or any part thereof, in the event that defendant was convicted; that he was not bitter or vindictive against the defendant, and any opinion he may have expressed as to his guilt was founded upon the facts which came to his knowledge, and not from any feeling against him; that he was not disqualified from selecting a fair and impartial jury in said cause, and had no desire to see the defendant tried by a partial or prejudiced jury, but, if it should be his duty to summon jurors in said cause, he would select them conscientiously, and endeavor to secure fair and impartial men, who had formed no opinions in said matter; that his deputies were also fair and impartial, and would have no reason to select or summon any other than fair and impartial jurors to try said cause; and that he believed a fair jury could be secured in said cause without great delay or unusual expense. The affidavits of others in support of and opposed to the change of venue having been filed, the motion was overruled, and it is contended that the court erred in this respect. The statute provides that in an action for a felony, when the cause is at issue upon a question of fact, the court may order the place of trial to be changed when it appears by affidavit, to the satisfaction of the court, that a fair and impartial trial cannot be had in the county where the action is commenced, and that the motion is not made for delay. Hill's Ann.Laws Or. § 1222. The affidavits filed in support of the motion do not state that the application for a change of venue is not made for delay; but that fact...