State v. Smith

• Decision Date: 10 March 1903
• Court: Washington Supreme Court
• Parties: STATE v. SMITH.

71 P. 767

31 Wash. 245

STATE v. SMITH.

Supreme Court of Washington

March 10, 1903

Appeal from superior court, Ferry county; C. H. Neal, Judge.

Michael Smith was convicted of grand larceny, and he appeals. Affirmed.

G. V Alexander, for appellant.

M. E Jesseph and L. C. Jesseph, for the State.

MOUNT J.

The appellant was convicted of the crime of grand larceny, and appeals from the judgment of conviction. The information omitting the formal parts, was as follows: 'Comes now M. E. Jesseph, prosecuting attorney of Ferry county, state of Washington, and by this information accuses Michael Smith of the crime of grand larceny committed as follows: He, the said Michael Smith, on the 7th day of October, 1901, A. D., in the county of Ferry, state of Washington, then and there being, did then and there unlawfuly steal, take and carry away $785, lawful money of the United States, the same being gold and silver coin of the property of one Frank O'Brien, with intent to defraud him, said Frank O'Brien, of his property, contrary,' etc. No demurrer was filed to this information. A plea of not guilty was entered, and a trial was had before a jury, which returned a verdict of guilty as charged. Motions for a new trial and in arrest of judgment were thereafter filed and denied by the court, and a judgment entered sentencing defendant to one year in the penitentiary.

The question presented by these motions and on this appeal is that the information does not state a crime because the word 'feloniously' does not appear in the information. The statutes defining grand and petit larceny in this state are as follows: 'Section 7108, 2 Ballinger's Ann. Codes & St. Every person who shall feloniously steal, take and carry, lead or drive away the personal goods or property of another, of the value of thirty dollars or more, shall be deemed guilty of grand larceny, and upon conviction thereof shall be imprisoned in the penitentiary not more than fourteen years nor less than one year.' 'Section 7109. Every person who shall feloniously steal, take and carry, lead or drive away the personal goods or property of another, under the value of thirty dollars, shall be deemed guilty of petit larceny, and upon conviction thereof shall be fined not less than twenty-five dollars nor more than one hundred dollars, or be imprisoned in the county jail not more than one month, or by both fine and imprisonment, in the discretion of the court.' Grand larceny is thereby made a felony, while petit larceny is a misdemeanor. 2 Ballinger's Ann. Codes & St. § 6773. It will be noticed that the only difference between the crime of grand larceny and that of petit larceny as defined by these statutes, is in the value of the property taken. The words 'feloniously steal' appear in each. Under the common law and in states where the words 'feloniously steal' appear in the definition of a crime, it is necessary to use the word 'feloniously' in charging the crime. But the rule of the common law and the decisions of the courts of other states are of little use in determining the sufficiency of an information under our statute, which provides, at section 6849, 2 Ballinger's Ann. Codes & St., as follows: 'Words used in a statute to define a crime need not be strictly pursued in the indictment or information, but other...