Ackerman v. State

CorN, Justice.

(After stating the facts as above.) A number of errors are assigned, but the points relied on are in substance that breaking and entering a “ sheep wagon,” however occupied or used, does not constitute burglary under our statute; that the complaint before the justice was not a sufficient basis for the information upon which the defendant (plaintiff in error) was tried, and the proceedings before the justice did not constitute a preliminary examination as required by the statute-; and that the larceny of which the defendant was convicted was two petit larcenies, the value alleged to have been stolen being improperly aggregated to exceed twenty-five dollars, the sum necessary to constitute grand larceny under the statute.

A decision of the first question is not necessary in this case, from the fact that the defendant was acquitted of the crime of burglary upon the trial. It is urged, however, that the mere fact of joining the charge of burglary and trying him upon it is to be presumed to have prejudiced the defendant upon his trial for the larceny. It is so well settled as to require no citation of authorities that burglary with intent to commit larceny and the larceny itself may be charged not only in the same indictment, but in the same count. And it has never been held that an acquittal upon the charge of the burglary will vitiate a verdict of guilty upon the charge of larceny. Indeed, the very reason for pleading it in this way is that in case of a failure to establish the charge of burglary the evidence may yet be sufficient to sustain a conviction for the lar *509 ceny. If the evidence were known in advance to be sufficient to establish the higher crime, it would be needless to charge the larceny at all. •

It is further objected that the proceedings before the justice did not constitute a sufficient preliminary examination upon which to base the filing of the information as required by Sec. 7, Chap. 29, Laws 1890-91. But this act was amended by Sec. 7, Chap. 123, Laws of, 1895, so as to provide ‘1 that whenever an offense shall -be charged against any person, at any time within thirty days immediately preceding the first day of a regular, term of court of the county wherein such offense is charged to have been committed, or within thirty days immediately following the first day of such regular term of court, provided such term shall continue in session for such period, then and in either of such cases, information may be filed without such examination; .but in cases last named, the accused shall have the right to a trial at such term of court, Provided, That if the defendant shall not be tried at such term of the district court for the reason that the case is continued upon the application of the prosecution, the defendant shall' be entitled to an immediate examination before a committing magistrate.”

This charge was preferred on October 23, and the meeting of court was November 8, following an interval of less than thirty days. It is evident that the thirty days mentioned in the amendment are to be computed from the date of the preferring of the charge, and not from the date of the commission of the alleged offense. The act of 1890-91 provided that informations might be filed without such examination whenever the county and prosecuting attorney should be satisfied that a crime or offense had been committed in his county. The amendment above quoted is a modification of the authority delegated to the prosecuting attorney, it being the opinion of the Legislature, no doubt, that the power conferred upon him by the original act was greater than could safely be intrusted to an individual in matters involving the personal liberty of the *510 citizen. And the reason for the limitation of thirty days evidently is that a person charged with crime shall not be held indefinitely with no opportunity for a hearing before an officer competent to discharge him in case there shall not appear to be probable cause for holding him to answer for the offense. The charge having been preferred in this case within thirty days immediately preceding the regular term of court, no preliminary examination was necessary.

But it is strenuously insisted that the facts alleged constitute not grand larceny, but two petit larcenies; — that the defendant has once been tried before a justice of the peace having full jurisdiction to finally try and determine cases of petit larceny, and that he can not lawfully again be tried for the same offense or offenses. The complaint before the justice charged the defendant with breaking and entering the wagon with intent to steal property therein, and further charged him with the larceny ‘£ then and there in said sheep wagon and dwelling house” of certain articles of the goods and chattels of Ole Broberg, stating the value of each, and certain other articles, stating the value of each, of the goods and chattels of A. L. and A. M. Brock, the value of the property of each owner being less than $25, the amount necessary to constitute grand larceny in this State, and that of both owners exceeding that sum.

There was formerly some conflict of authority upon this question, and we are referred especially to U. S. v. Beerman, 5 Cranch C. C., 412 (24 Fed., cases 1065). That case was decided in 1838 and a majority of the court held ‘‘ if the goods of several persons are stolen at the same time, the stealing of each person’s goods constitutes a distinct offense, and may be the subject of a distinct and separate indictment.” The theory upon which the case was decided and its value as an authority are sufficiently illustrated by a brief extract from the opinion. The court say (at page 1070, 24 Fed., cases) ‘ ‘ The gist of the offense (larceny) is the violation done to the right of property of the injured individual, *511 which it is the duty of the. government to protect. The injury done to the right of property of A. is not an injury to the right of property of B. Both are injured, and each has an equal right to call upon the government to punish the offender.” It is hardly necessary to say that this is not the theory of the criminal law at all. Larceny is an offense against the public, and it is this which the State undertakes to prosecute and punish. It does not undertake by the penalties of the criminal law to redress private injuries. It punishes an act, done with a certain criminal intent, as a violation of the public law. If the property was all taken at the same time, it is one offense whether the goods belonged to one person or to several. But the point is well settled by the later authorities: 1 Bishop’s New Crim. Law, Secs. 1061-1063; Quitzon v. The State, 1 Texas Ct. App., 48; Wilson v. The State, 45 Texas, 76 ; The State v. Nelson, 29 Me., 329; Nichols v. Com., 78 Ky., 180 ; Fisher v. Com., 1 Bush, 212 .

It is also contended that the evidence does not show that all the articles were taken at the same time, and that it is therefore insufficient to sustain a verdict for grand larceny. The evidence tends to show that the man in charge of' the wagon put all the articles in it in the morning and fastened it up; that upon returning in the evening he found it had been entered and the things stolen. Tracks of horses were followed from the wagon to the camp of the plaintiff-in error where the goods were found, and the track of a man’s shoe having' peculiar marks was found near the wagon and a similar track about the defandant’s camp. The only explanation offered by the defendant was that the goods were left at his camp by a man whom he did not know. More convictions for the crime of larceny have been based upon this character of proof, perhaps, than any other, and to inject into it a supposition that there may have been two takings and two asportations for the sake of reducing the crime from grand to petit larceny is not justified by any principle of the *512 law of evidence or common sense. There is no evidence, of more than one taking, and it is not to be presumed that the perpetrator of the offense would expose himself to detection by unnecessarily dividing up his work and making repeated journeys to the place.

The verdict was sufficient. After entitling the cause it recites: “We, the jury impaneled and sworn in the above entitled cause, do find the defendant William Ackerman guilty of larceny, and we find the value of the property stolen at $29.15.” It is not essential that the words, “as charged in the information,” should be added if the meaning is otherwise clear. ‘ ‘ In every verdict there must be a reference to the indictment to make it have any meaning. The verdict is the response of the jury to the charge and to the issue formed upon it. Ordinarily the verdict is “guilty” or “not guilty.” The verdict is general, and its legal effect is guilty or not guilty of the charge as laid in the indictment. ” Arnold v. The State, 51 Georgia, 146. There is no uncertainty in the verdict in this case, and no difficulty in understanding it to be a verdict that the defendant is guilty of the larceny charged in the information. People v. McCarty, 48 Cal., 557 ; Armstrong v. People, 37 Ill., 459 ; Blount v. State, 49 Ala., 381 .

We find no error in the record, and the judgment will be affirmed.

Judgment affirmed.

Potter, C. J., and Knight, J., concur.