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a sufficient ground for arrest of judgment, neither will judgment be arrested because the value of each article is not specified in the indictment, though if the value of a part only is stated, judgment will be arrested as to that part to which no value is asscribed ; 3 and if there is a variance as to the allegation of ownership, a nolle prosequi may be entered after appeal and reversal, and a new indictment found.4 Newly discovered evidence which is material is sufficient ground for a new trial.5

XVIII. EXCEPTIONS.—Errors of law occurring at the trial in a criminal prosecution must be excepted to at the time the decision is made, and exceptions so taken will constitute a part of the record ; 6 and, unless a bill of exceptions be reserved, the action of the court below in refusing a continuance will not be revised.? A defendant, objecting to any order, ruling or decision of the trial court, is entitled to time in which to prepare his bill of exceptions,8 and the bill, and any statement of facts, unless authenticated by the trial judge, will not be considered by the court above

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the jury. Hoskins v. State, 27 Ind. 470. horse; and, upon motion for a new

1. Com. v. Eastman, 68 Mass."(2 trial, the owner made affidavit that he Gray) 76. See Com. v. Duffy, was under the impression that defendCush. (Mass.) 145.

ant did not make the first statement, A description of the property stolen, and that the second was made to affias some bottled beer of the value of two ant's wife; held, that new trial dollars and fifty cents, is insufficient, should have been granted. Brown v. on motion in arrest of judgment. State State, 13 Tex. App. 59. v. Hoyer (La.), 4 S. 899.

But a new trial is properly refused if A certain instrument in writing con- applied for because of the refusal of a taining evidence of an existing contract continuance sought for the purpose of for the conveyance of real estate, to obtaining testimony not probably true. wit, a lot in Å, of the value, etc., was Harvey v. State, 2i Tex. App. 178. held sufficient on motion of arrest. 6. Pence v. State, 110 Ind. 95. Dignowitty v. State, 17 Tex. 521.

A new trial will be granted by this 2. State v. Murphy, 8 Blackf. (Ind.) court for a variance between the alle. 498.

gations and the proof, where no ex3. Com. v. Smith, 1 Mass. 245. ception is taken in the court below. 4. Hughes v. Com., 17 Gratt. (Va.) The presumption is that every fact 565.

necessary to sustain the verdict was 5. Where, after a conviction of proved on the trial. State v. Craige, theft, it is shown in the affidavit for a 89 N. Car. 457; s. C., 45 Am. Rep. 698; new trial that the owner of the articles State v. Green, 81 N. Car. 560; State alleged to have been stolen has become v. Walker, 87 N. Car. 541; State v. convinced of the innocence of the de- Jones, 69 N. Car. 16; State v. Potter, fendant, and newly discovered evidence Phill. (N. Car.) 338; State v. Gowan, 7 is also disclosed, which tends to show Ired. (N. Car.) L. 239; Honeycut v. that the defendant had no intention of Angel, 4 Dev. & B. (N. Car.) 306. stealing the property or of assisting in It is incumbent upon a defendant in the commission of such offence, a new a misdemeanor case to except to er. trial should be granted. Morse v. roneous charges given, and to refusal State (Ind.), 6 West 604.

of the court to give the instructions Where, on the trial for the theft of a asked, in order to subject such queshorse, the prosecution relied upon the tions to review by this court. Winn defendant's attempt to mislead the v. State, 11 Tex. App. 304. owner, who testified that defendant 7. Taylor v. State, 12 Tex. App. 489; first told him that he had heard of the Makinson v. State, 16 Tex. App. 133. horse in a certain place and afterwards 8. Pence v. State, 110 Ind. 95; Brown said that he had bought and sold the v. State, 13 Tex. App. 59.

for any purpose whatever. In the absence of a proper statement of facts, the only duty of the higher court is to determine whether the indictment is sufficient to sustain the charge of the court and the judgment of conviction.2

XIX, PUNISHMENT.—By the common law, as modified in American practice, fines and imprisonment are the usual punishments imposed for larceny and other criminal offences not capital ; 3 and where the statute creating or defining an offence designates no penalty, fines or imprisonment are the ones presumed to have been intended.4 The amount of the fine or the duration and character of the imprisonment imposed is usually left to the discretion of the court, exercised within the statutory bounds,

1. Bennett v. State, 16 Tex. App, the court, embodied in the record, 236.

showing that such filing was authorIt is the duty of the clerk of the trial ized, cannot be considered by this court - court to copy, where he is required to for any purpose whatever. Thompson do so, all records verbatim et literatim. v. State, 16 Tex. App. 74. He is not authorized to interpolate or 3. Conner v. Com., 13 Bush (Ky.) omit words and sentences not appearing 718; State v. Dewer, 65 N. Car. 572. in the original. Crockett v. State, 14 Larceny in Indian Property.-The InTex. App. 226. And he should be dian Intercourse act of June 30th, 1834 careful to insert no foreign or superflu- (4 St. 729), was extended over Oregon - ous matter. Wheeler v. State, 15 Tex. so far as the same was applicable App. 607.

thereto, by act of June 5th, 1850 (9 St. Where all the evidence is not con- 427). Held, that the provision of said tained in the bill of exceptions, it will act of 1834, providing for the punishbe presumed that the venue was proved ment of a white man for stealing the as laid. State v. Keeland, 90 Mo. 337. property of an Indian, and vice versa,

The omission from the record, of an was applicable to Oregon, and thereaffirmative statement that the defendant after in force there; and that the same was asked if he had anything to say was not modified or repealed by the why sentence should not be pro- admission of the State into the Union nounced, before the court gave judg. February 14th, 1859, 11 St. 383. U. S. ment, the record showing the making v. Bridleman, 7 Fed. Rep. 594. and overruling of motions for a new Exceptions,-For petty larceny a trial and in arrest, is not ground for a negro may be sold as a ave, but not reversal of a conviction of larceny. sold out of the State, and a judgment Bressler v. People (Ill.), 5 West 185. so ordering the sale must be reversed.

When the bill of exceptions em- Maria v. State, 15 Md. 208. braces the testimony and does not Under the Virginia act of February .: show the value of the property so 21st, 1823, a free person of color, for * charged to have been stolen, and this the offence of grand larceny, may be

court cannot see that the proper ver- condemned to be sold as a slave and dict has been found, the court will transported and banished beyond the award a

trial. Whitehead limits of the United States. Aldridge State, 20 Fla. 841.

v. Com., 2 Va. Cas. 447. 2. Thompson v. State, 16 Tex. App. 4. State v. Danforth, 3 Conn. 112; 74.

U. S. v. Coolidge, 1 Gall. (U. S.) 488; Failure to Prosecute. — This court Res. v. DeLongchamps, i Dall. (U. cannot affirm the judgment in a crimi. S.) 111. nal case for failure of appellant to 6. Whart. Cr. Pl. & Pr. (8th ed.), prosecute his appeal. It is his duty 918. See Williams v. State, 15 Ala. under the statute to render judgment 259; Reg. v. White, 20 Eng. Law & on the record. Overruling State v. Eq. 585. Armstrong, 46 Mo. 588.

One who steals a slave is punishable Statement Filed Late.-A statement under the Texas act of March 20th, of facts filed after the adjournment of 1848, providing for the punishment of the court, in the absence of an order of all simple grand larceny, not otherwise

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though in some instances the imposition of the punishment is left to the jury. Where, by statute, a particular penalty is attached to a particular act, the punishment which may be imposed for its commission is not affected by the value of the property, 2

specially provided for. White v. State, the court of common pleas or munici1 Tex. 769.

pal court, is punishable by imprisonment The minimum penalty affixed by the in the State prison, as provided in the statute to the larceny of a horse, mare Rev. Stat., ch. 120. 16, although the or gelding, is ten years' imprisonment property alleged to be stolen does not in the penitentiary, and it was error in exceed five dollars in value. Com. v. the circuit court to reduce the punish- Nolan, 5 Cush. (Mass.) 288. ment assessed by the jury below the Fines.-Under the S. Car. statutes of minimum thus affixed by the statute. 1789, 1866 and 1872, defining and punState v. Daniels, 32 Mo. 558.

ishing larceny, the offence of stealing a Under a conviction for larceny, or cow of a value not exceeding $20 was receiving stolen goods, if the value of held to be a misdemeanor punishable the goods is assessed by the jury at only by a fine of £10, after whipping $100, the punishment must be by im- was abolished, until the repealing act of prisonment in the county jail or hard 1872. State 2'. Hamblin, 4 S. Car. 1. labor for the county, and cannot ex- A fine of $50 or three months in a ceed twelve months (Ala. Rev. Code, chain gang, imposed upon a chicken 00 3708, 3710); if it exceeds $100, the thief, is lenient. Buchanan v. State, 74 offence is a felony, and punishable by Ga. 835. imprisonment in the penitentiary. Co- 1. See Fowler v. State, 9 Tex. App. hen 7. State, 50 Ala. 108.

149. If convicted of petit larceny, defend- In relation to grand larceny, it was ant may, since the adoption of the code, the intention of the legislature that the be imprisoned for not more than one jury should only assess the punishment year, or fined not more than $500, or when, in the exercise of their discreboth, as prescribed in 15, Pen. Code. tion, they thought that the defendant The punishment prescribed by Rev. deserved the punishment of death. If St. 690, is inconsistent with the above, they did not agree to such punishment and is repealed by code, 0 726. People upon finding the defendant guilty, then v. McTamaney, 30 Hun (N. Y.) 505; they should find a general verdict. S. C., 13 Abb. (N. Y.) N. Cas. 55; 66 People v. Littlefield, 5 Cal. 355. How. (N. Y.) Pr. 70.

Recommendation to Mercy -Cattle If a person, while engaged in gratui- stealing is felony and punishable by tously assisting a postmaster, at his re- prisonment in the penitentiary, unquest, in sorting the letters, steal one less the jury recommend the prisoner of them, he is liable to the several pen- to mercy, in which event the offence is alties imposed by the statute 7 Will. not deemed felonious, but only punishIV and 1 Vict., ch. 36, § 26, as a per- able by fine or imprisonment in the son employed under the postoffice. common jail or the chain gang. This Reg. v. Reason, 22 Eng. Law & Eq. mitigation or punishment is confined to 602.

the free discretion of the jury. JohnBreaking, Entering and Stealing.– son v. State, 58 Ga. 491. The respondent was found guilty of Petit Larceny in Alabama.-Under breaking and entering a church in the the provisions of the Alabama Code day time and stealing property worth (Ala. Rev. Code, 99 3708, 3783), the less than seven dollars, and was sen- power to impose imprisonment for petit tenced to five years' imprisonment. larceny is vested in the judge and not Held, that the word larceny, as used in in the jury. Moss v. State, 42 Ala. the statute, R. L., 4133, includes not 546. only grand, but petit larceny, and, con- 2. Hoge v. People, 117 Ill. 35; Peosequently, that there was no error in ple v. Jones, 49 Mich. 591; McDowell the sentence. State v. Keyser, 56 Vt. v. State, 61 Ala. 172. 622.

The punishment which may be imLarceny from the Person.—The of- posed by the court of common pleas, fence of stealing from the person, upon under Mass. Rev. Stat., ch. 126, § 17, an indictment and conviction thereof in for larceny of property not exceeding

but such punishment can only be imposed when the information or indictment is based on that particular statute.1

Where different offences are created and defined by the same enactment, and a separate and distinct punishment is provided for each offence, and a single act may constitute a violation of two or more of these provisions, it is for the courts to determine whether the act prohibited was intended to be punished by one indictment and conviction, and, if so, for which offence.2 Thus, on a count for breaking and entering with intent to steal, and another for stealing, on a general verdict of guilty, distinct sentences may be imposed.3 Larcenies committed before the amendment or alteration of the statute creating and defining the crime and prescribing its punishment, though conviction be had under the new law, are punishable only by the penalties of the old.4

The statutes of several States provide a penalty of increased severity for a second perpetration of the same offence. A former conviction in a foreign state or country is not, however, a sufficient basis for the imposition of the aggravated penalty. And the enactments of Texas, and perhaps of some other States, provide for the mitigation of the punishment for larceny in case of the voluntary return of the property stolen within a reasonable time; 7

but this provision does not apply where the thief has been caught in possession or where he has changed the character of the thing stolen one hundred dollars in value, is not af- The punishment for stealing and refected by the value of the property, ceiving stolen goods is the same under notwithstanding the concurrent juris- our statute. Maynard v. State, 14 Ind. diction given by s 18 to justices of the 427. peace, where the value is not alleged to Section 4247 of the Iowa revision, exceed fifteen dollars. Com. v. Mc- which provides that if any person at Kenney, 9 Gray (Mass.) 114.

the same term of court is convicted of One indicted under the act of 1830 three distinct larcenies, he shall be for stealing a colt cannot be convicted deemed a common and notorious thief, and punished for petit larceny. If, and shall be punished, etc., does not therefore, the jury found him guilty of provide for the punishment of common petit larceny, a new trial will be and notorious thieves as such, but for granted. State v. Major, 14 Rich. (S. their punishment under an ordinary inCar.) L. 76.

dictment for larceny. State v. Riley, Infancy.—The disqualification of in- 28 Iowa 547. fancy, under Tenn. Code, 99 52 26-7, 4. State v. Putney, Phill. (N. Car.) does not attach to horso stealing. Wil- L. 543. cox 7'. State, 3 Heisk. (Tenn.) 110.

5. Whart. Crim. Pl. & Pr. (Sth ed.), 1. People v. Seller, 58 Mich. 327. $ 334. See People v. Stanley. 47 Cal.

A sentence, as to the crime of horse 113; Com. v. Morrow, 9 Phila. (Pa.) stealing, to six years' confinement in 583. the State prison (the information being 6. People 7'. Caesar, i Park (N. Y.) for grand larceny), is not authorized by Cr. 645. the Michigan statutes. Boody v. Peo- 7. Owen 7. State, 44 Tex. 248; ple, 43 Mich. 34.

Grant 2. State, 2 Tex. App. 163; Brill 2. People v. Krank, 46 Hun (N. Y.) 7. State, i Tex. App. 372; Ingle v. 632; s. c., 12 N. Y. S. R. 845.

State, i Tex. lpp. 307. 3. Com. v. Birdsall, 69 Pa. St. 482. One who has stolen a watch, and See Stanley v. State, 58 Ga. 430; Com. denied knowledge of it when quesv. Mahar, 8 Gray (Mass.) 469.

tioned, but who, nevertheless, has given 12 C. of L:-57

897

before the offer to return;1 and it should appear that the return was not prompted by consciousness of unconcealed evidence of guilt and fear of discovery?

That restitution of stolen property must be made is a principle of the common law,3 as well as of American jurisprudence.4 By the common law it could not, however, be followed into the hand of an innocent purchaser,• though the rule is probably different in most of the United States. Summary restitution, however, is limited to the articles stolen, and does not extend to money or other things into which or for which they have been changed by the thief.?

LARGE-AT LARGE—(See also AT).—“Running at large,” in statutes imposing a penalty on one who suffers animals to run at large in public places, is used in the sense of strolling without restraint or confinement; as wandering, roving, or rambling at will, unrestrained. Perhaps no precise abstract rule under the statute can be laid down, applicable to every case, as to the nature, character and amount of restraint necessary to be exercised over a domestic animal when suffered to be on the highway incident to its use. But the restraint need not be entirely physical ; it may depend much upon the training, habits and instincts of the animal in the particular case ; and the sufficiency of the restraint is to be determined more from its effect upon, and controlling and restraining influence over, the animal than from its nature or kind.8

it up of his own accord before prose- nor award an execution in favor of the cution commenced, is within the pro- person from whom it was stolen. Com. tection of the Texas statute mitigating v. Henley, 1 Va. Cas. 145. the penalty where there has been a 8. Russell v. Cone, 46 Vt. 604-5. voluntary return of the stolen property. “Suppose a span of horses be so accusBennett ?'. State, 17 Tex. App. 143. tomed to be kept and driven together

1. Horseman '. State, 43 Tex. 353; that while the owner is riding one the Grant v. State, 2 Tex. App. 163.

other will voluntarily follow as closely 2. Stephenson 2. State, 4 Tex. App. almost as if led by a halter; the 591.

owner, while taking them along the 3. 2 Whart. Cr. L. (9th ed.), Ø 981. highway in this manner, could not be

4. See Lance V. Cowan, I Dana said to suffer the horse so voluntarily (Ky.) 195; Com. 7. Boudrie, 4 Gray following its mate, to run at large in (Mass.) 418.

violation of the statute. The same may l'pon the conviction of a thief or be said of a young sucking colt upon robber, the owner is entitled to restora- the highway, with no restraint other tion of the thing stolen, or its produce. than instinct to follow its dam, which Lance 2. Cowan, i Dana (Kr.) 195. is being driven in a carriage on the

5. Scattergood v. Sylvester, 15 Q. highway.” It was accordingly held in B. (Eng.) 506; Rex. v. Wollez, 8 Cox this case that a horse accustomed to be C. C. (Eng.) 337. See 2 Whart. Cr. ridden to a certain point by the owner L. (9th ed.), Ø 981.

and then to return home alone to a point 6. Lance v. Cowan, i Dana (Kr.) where the owner's boy was waiting for 195; Bassett V. Spofford, 45 X. Y. him and took care of him was not "sun

ning at large,” if the owner or his son 7. Com. v Bouu 'ie, 4 Gray (Mass.) kept so near that, owing to its training,

it would not wander about the highway, On a conviction of larceny of money, but go directly home. the court ought not to enter judgment So, in trespass for shooting a dog, it against the prisoner for the amount, appeared that the dog was a hound kept

387

418.

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