holding that the defendant’s possession of a stolen cow only two weeks after the taking was sufficiently recent for a jury to infer that he was the thief
How later courts described this case
- holding that the defendant’s possession of a stolen cow only two weeks after the taking was sufficiently recent for a jury to infer that he was the thief
- the court has discretion to allow the state to reopen its case
Written by the judges who cited it.
The opinion
Petition for rehearing denied January 12,1932.
On Petition eor Rehearing
( 6 P. (2d) 1086 )
BROWN, J.
The defendant has filed a petition for a rehearing, wherein he states:
“That an inspection and review of the testimony of the witnesses for the state
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upon which
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the defendant and appellant’s motion for a directed verdict * # * was based will disclose that there is a total and ntter lack of positive testimony, or of other evidence, of the value of the cow alleged to have been stolen, and, therefore, there was no evidence as to that element of the alleged crime upon which the jury could pass upon, or upon which to support the verdict.”
By the indictment the defendant was charged with larceny as defined by Oregon Code 1930, at section 14-319, which reads:
“If any person shall commit the crime of larceny by stealing any horse, gelding, mare, mule, ass, jenny, or foal, bull, steer, cow, heifer, calf, hog, dog, or sheep, such person, upon conviction thereof, shall be punished by imprisonment,” etc.
Although the indictment did allege the value of the animal stolen, no allegation of value, age, color, or stock was necessary. Section 13-711, Oregon Code 1930, provides:
“When a crime involves the taking of or injury to an animal, the indictment is sufficiently certain in that respect if it describe the animal by the common name of its class.”
The question of value was before our court in the recent case of
State v. Broom,
135 Or. 641 ( 297 P. 340 ). In that case the defendant was indicted for robbery, but was convicted of the crime of larceny from the person. In the indictment no'value was placed upon the revolver that was alleged to have been feloniously and with violence taken from the person of the deputy sheriff, and, with reference to that phase of the case, we wrote:
“An instrument of no value is not subject-matter for prosecution for the crime of larceny. 2 Wharton’s Criminal Law (11th Ed.), § 1119. It will be noted that
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the definitions of ‘larceny’ always embrace ownership and value, and very often use the term as ‘the property of’ the victim; ‘the property of’ designating both ownership and a thing of some value.
“In the case at bar no witness testified directly as to the value of the pistol claimed to have been stolen from the person of Lucas. However, both courts and textwriters hold that the value of the article forming the subject-matter of the larcenous act may be shown inferentially. See 2 Wharton’s Criminal Law (11th Ed.), § 1117. In the crime of larceny from the person, ‘the value of the property is immaterial, so that it have some value. There is no occasion, as there is in larceny, for alleging the value, as the punishment is not made to depend on the value of the property taken.’ 1 McClain on Criminal Law, § 472. To the same effect is Underhill’s Criminal Evidence (3d Ed.), § 467.”
See, also, the authorities cited in the succeeding paragraph.
To the effect that where a crime involves the larceny of an animal, the indictment is sufficiently certain if it describes the animal by the common name of its class, see
State v. Brinkley,
55 Or. 134 ( 104 P. 893 , 105 P. 708 ). We note also the case of
State v. Wright,
122 Or. 377 ( 257 P. 699 , 259 P. 298 ), where this court' held that an indictment for larceny which avers that the value of the cow stolen exceeded $35 neither raises nor reduces the offense. See Joyce on Indictments (2d Ed.), § 426. As to the sufficiency of an indictment in cases of this character, we also direct attention to the following concise statement which appears . in 3 Bishop’s New Criminal Procedure, § 713, par. 4:
“In statutory horse-stealings and other like larcenies of specific things, where the punishment in no degree depends on the value, it need not be averred; or, if averred, it need not be proved.”
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However, in the ease at bar, the value of the stolen cow was averred, and there was an abundance of testimony before the jury from which it could rightfully find that the cow was of value. In the course of the trial the defendant filed a motion for a directed verdict, in which he states “that James Brown testified that he purchased the cow from the defendant; that the cow was worth $100.” Other witnesses likewise testified to the value of the cow.
After a fair and impartial trial in the lower court, the defendant was convicted. The petition for a rehearing will be denied.
Bean, C. J., Belt and Campbell, JJ., concur.