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his own behalf, to answer the following is of doing the like in respect to visible or question: "Did you at that time honestly external circumstances. The jury can believe that the money was yours, and that readily distinguish between the false and you had a right to take it?” to which ques- true in respect to the former as to the lattion the prosecuting attorney objected, for ter. If the motive or intent assigned is inthe reason that it was incompetent, and the consistent with the external circumstances, court sustained the objection. We think it must be discarded as false; if, on the conit was competent for the defendant to tes- trary, they are consistent, there is no reason tify what his intent, belief, and motive were why they may not be true.” This doctrine at the time of the alleged robbery; and the was recognized in State v. Harrington, 12 court, in excluding this testimony, seems to Nev. 135, and followed. In that case the have proceeded upon the theory in part (and following question was asked the defendant the charge indicates it) "that the intention by his counsel: "At the moment of the disof the parties is to be derived alone from charge of the pistol at the deceased, did the act done; from that and the surround- you or did you not really believe that you ing circumstances determine what he in. were in danger of losing your life or receiv.. tended to do”; and that in arriving at the ing great bodily harm?" and Mr. Justice intention the defendant's own statement and Leonard, in concluding his discussion on testimony was not to be considered. This this question, says: "We are entirely satisundoubtedly was the common-law rule, fied that, for the purpose of showing the which had its origin when the defendant condition of his mind at the time, and to was not allowed to be heard in his own be. establish the necessary conditions of justihalf. This point is discussed in the case of fication, the defendant had the right to anPeople v. Farrell, 31 Cal. 576. The court swer the question objected to, and that it there says: “The rule that the intent must was for the jury to consider it, like all other be inferred from the acts and words of the testimony proper to be given in the case." party had its foundation in necessity, cre- In White v. State, 53 Ind. 595, on the trial ated by the rule which excluded parties in of an indictment for larceny, it was held interest from the witness stand. That ne- competent for the defendant to testify as to cessity is now removed by the abrogation what his intentions were at the time the of the rule which created it; and the legal goods came into his possession; and this tenet that actions must speak for them- doctrine is cited approvingly by Thompson selves, and words furnish their own inter- in his works on Trials. In modern times pretation, is much modified, if not wholly the rule has been extended not only to crimabrogated, by the recent innovations upon inal cases, but to civil cases as well, whenthe common law by which parties are al- ever the question of motive or intention is lowed to testify in their own behalf. Be

involved. This court passed on this quesfore that time there was no way of ascer- tion in the case of Conway V. Clinton, 1 taining the motives and intentions of par

Utah, 215. In that case “the defendant was ties except by inference from their acts and charged with maliciously and wantonly desayings, and all experience shows that they stroying the goods of the plaintiff,” and it may frequently, if not at all times, prove was held that the defendant could "state very imperfect guides. It is no answer to what motive he had, if any other than to say that this enables a party to substitute a obey the writ, in doing the act complained false motive for the true one, or to convert of"; and also whether at that time he had words spoken in one sense into another. If ill will against the plaintiff. We think the the argument proves anything, it proves too principle involved in the case at bar is the much, and shows that the radical change same, and that it was error to refuse the which has been made is in all respects appellant the right to testify as to his belief founded in folly, rather than wisdom. For at the time of the alleged robbery. the truthfulness of parties when upon the

The defendant requested the following inwitness stand we must depend, as in the structions to be given to the jury: "That case of other witnesses, upon the obligations if they should find that the defendant acted of their oath, and their reputation for truth under a bona fide impression and honest beand veracity. If these can be relied upon lief that the money taken was his own, and for the truth of statements made in refer- that he had a right to it, they render a verence to acts and words of which the eye and dict of not guilty.” The defendant could not ear may take notice, they may, for the same have been guilty of robbery in taking his reason, be accepted as guaranties for the own property, whatever other offense he may truth of statements made in respect to mo- have committed in the taking. In all crimtives and intents of which the mind or inner inal cases the question of intent is an imman alone can take cognizance. Nor is portant one. If this element is lacking, the there, in our judgment, any well-grounded general rule is that no offense has been comreason for apprehending that this rule will mitted. This rule is not only humane, but obstruct, rather than advance, the ends of a contrary one would be opposed to all the justice. There is no more danger of impos-principles which underlie human conduct as ing upon the jury falsehood or pretense in respects the bearing of individuals towards respect to motives and intents than there each other, and also as regards their position

In a

towards the state. And so the law is that, either surrender it up or compelled him to perwhen evil intent is lacking, the act or omis- mit the defendant to take it out of his pocket sion, which otherwise would constitute an or off his person, it is an offense under the offense, is robbed of its criminality. The statute, provided it was committed within the rule governing this class of cases seems to time and at the place designated in the indictbe well settled and thoroughly defined.

ment.” Under the authorities, we think the note in 70 Am. Dec. 188 (State v. McCune), instruction is incorrect. To constitute the where a number of authorities are collected, offense of robbery, there must be - First, a this proposition is laid down: “When the taking of the property; second, the taking prisoner takes the property under a bona must be with a felonious intent; third, it fide impression that the property belongs to must be from the person or presence of anhim, he commits no robbery, for there is no other; fourth, against his will; and, fifth, acanimus furandi.” Long v. State, 12 Ga. 293; complished by means of force or fear. 3 Brown v. State, 28 Ark. 126,--where the tak- Greenl. Ev. $ 223. And, if either of these ing was in the presence of others, as was elements is lacking, the offense cannot be the case at bar. Again, it is held that when robbery. We are of the opinion that it was a creditor compels the payment of his debt material, and the burden of proof was on the by the use of violence, he is not guilty of prosecution to prove the money was owned robbery, for there is no animus furandi. by some person other than the defendant, State v. Hollyway, 41 Iowa, 200. In the for, if the money belonged to him, and it Iowa case, Miller, C. J., says: “In robbery, was wrongfully in the possession of another, as in larceny, it is essential that the taking he would not be guilty of robbery, as the of the goods be animo furandi. Unless the animus furandi would be wanting. For the taking be with a felonious intent, it is not reasons above set forth, we are of opinion robbery. If a man, under a bona fide belief that the motion for a new trial should have that the property is his own, obtain it by been allowed. The evidence excluded and menaces, there is a trespass, but no robbery. the charge with reference to the felonious Though the defendant take the goods with intent were clearly erroneous, and prejudiviolence, or by putting in fear, yet, if he do cial to the rights of the appellant; and the so under a bona fide claim, it is no robbery, case is therefore reversed, and a new trial for the reason that the felonious intent is granted. wanting." "In all cases of this kind the question whether the act is done with a feloni

BARTCH, J., concurs. ous intent is one of fact for the jury.” The refusal of the court to give this request was error. The defendant in all cases is en

(11 Utah, 108)

ROGERS Y. DONNELLAN. titled to have the law governing his case given to the jury for their guidance, and in

(Supreme Court of Utah. Feb. 23, 1895.) this case the question of honest belief and

RESULTING TRUST – WIAT Constitutes COVE

NANT IN DEED-EFFECT ON GRANTORbona fide intention should have been submit

ESTOPPEL TO TESTIFY. ted to and passed upon by the jury under

1. Six persons purchased land, paying equal proper instructions. See Com. v. Stebbins, portions of the purchase price, and taking the 8 Gray, 492; 2 Russ. Crimes (9th Ed.) p. 104; deed in the name of one of them, K., who ex2 Rosc. Cr. Ev. (8th Ed.) p. 1157. In this

ecuted an instrument stating that he held it in

trust for all, which was not recorded. Subsecase the court charged the jury as follows: quently a partition was made, whereby K., "I also charge you that it is not material for with the consent of plaintiff and H., others of the prosecution to prove who owned the

the cotenants, conveyed one-half the land to the

other three parties, and they in turn conveyed money, who had the best right to it; the

to him their interest in the other portion, which charge is that it was taken from the posses- he was

to hold in trust for plaintiff and H. K., sion of Nichols, and that is the statute. The

plaintiff, and H. paid equal portions of the bo

mus paid by them in the partition. Hed, that statute, as I have already read to you, for

there was a resulting trust in favor of plaintiff bids the taking of personal property from the in the portion conveyed to K., as to a one-third possession of another by means of force or

interest therein. fear; that is, taking it from his person. It

2. A trustee is not precluded by his cove

nant of seisin and warranty in a deed from tesis sufficient taking from the person if the

tifying, in an action by the cestui que trust to evidence convinces you that the party hav- establish the trust as against the grantee, that ing personal property in his possession is

he notified the grantee of the interest of the put in fear, or compelled to lay it down, sur

cestui que trust. render it up, give it to another, or lay it Appeal from district court, Salt Lake coundown where the other person may take it up,

ty; before Justice George W. Bartch. or where any other person may take up. Action by Alexander Rogers against John It is sufficient if he is compelled to part with

W. Donnellan. From a judgment for plainhis possession of it, being put in fear, or if tiff, defendant appeals. Affirmed. it is forcibly taken from off his person; either

Frank Pierce, for appellant. Sutherland & is a sufficient taking from the person. In

Howatt, for respondent. this case I charge you that if Nichols had this money in his possession, and the defend- MERRITT, C. J. This action was brought ant, by putting him in fear, compelled him to to have the plaintiff's title to an undivideil

one-third interest in certain real estate in cuted or the money paid, that the plaintiff Salt Lake City established and confirmed was interested in the property covered by against the defendant; to have it decreed the deed of trust. This is denied by the dethat a certain deed of trust executed by Ed- fendant in his answer. Upon this issue the ward A. Kessler and Enos D. Hoge to the court below found for the plaintiff, and the defendant, as trustee, is no lien thereon; and defendant, on appeal, admits the sufficiency for an injunction perpetually enjoining the of the evidence to warrant the finding, but defendant and his successors from selling insists that the court below erred in two the same under the power contained in the particulars: (1) In holding that the plaintiff deed of trust. There was a decree for the was the owner of one-third of the property plaintiff, and defendant appeals.

covered by the deed of trust, instead of only The record discloses that on December 23, one-sixth thereof; and (2) in permitting 1889, Edward A. Kessler, Enos D. Hoge, Kessler, when called as a witness by the Joseph Baumgarten, Mr. Wallace, Harriett | plaintiff, to answer, over the objection of A. Partridge, and the plaintiff purchased the defendant, that he informed Pierce, the certain real estate in Salt Lake City for $30,- agent of Mallory, before the execution of the 000, each of them paying one-sixth of the deed of trust, of the interest of the plaintiti consideration, or $5,000. The deed was tak- in the property. It is conceded by appellant en in the name of Kessler, who, within a that the plaintiff had an undivided one-sixth short time thereafter, executed a written interest in the whole property, but it is condeclaration that he held the title in trust for tended that he did not convey his interest in himself and associates, one-sixth to each. the west half to Baumgarten and Partridge, The declaration of trust was not recorded. and took nothing by the conveyance by A short time prior to September 23, 1892, Baumgarten and Partridge of their interest the several owners agreed to a division of in the east half to Kessler. This is claimed the real estate, whereby the plaintiff, Kess- to be so because the plaintiff was not a parler, and Hoge should take the east half ty to either conveyance, and that, so far as thereof, and Baumgarten, who had previous- the plaintiff was concerned, it was only a ly purchased Wallace's interest in the prop- rol partition of the property, and void unerty, and Partridge should take the west der the statute of frauds. What the effect half; Kessler and Hoge and the plaintiff to was of the conveyance by Kessler, with the pay to Baumgarten and Partridge $1,600, consent of plaintiff, to Baumgarten and the east half being considered that much Partridge, of the undivided one-half of the more valuable than the west half. On Sep- west portion, we need not consider, as it is tember 23, 1892, in pursuance of this agree- not involved in this case. But we think it ment, Baumgarten and Partridge conveyed is clear that when Baumgarten and Partto Kessler their undivided one-half of the ridge conveyed their portion in the east half east portion of the property, and Kessler, to Kessler, under an agreement with Kesswith the consent of Hoge and the plaintiff, ler, Hoge, and the plaintiff, each of them payexecuted to Baumgarten and Partridge a ing one-third of the $1,600 paid therefor, the deed which purported to convey to them the title conveyed by Baumgarten and Partundivided one-half of the west portion of the ridge vested in Kessler, in trust for Kessler, property; and Kessler, Hoge, and the plain- | Hoge, and the plaintiff, and that thereupon tiff paid to Baumgarten and Partridge $1,- the plaintiff became the equitable owner of 600, each of them contributing one-third an undivided one-third of the east half. thereof. On September 21, 1892, Kessler | Originally he had a one-sixth interest, the conveyed to Hoge an undivided one-third in- title to which was in Kessler in trust for terest in the east half and on the same day him. By the conveyance from Baumgarten Kessler and Hoge executed to the defendant, and Partridge to Kessler, the plaintiff as trustee for D. D. Mallory, a deed of trust became the equitable owner of an undiupon the east half, to secure a loan to Kess- vided one-sixth in the east half, and thereler and Hoge of $6,000, the deed making no after was the owner of an undivided onemention of the interest of the plaintiff, and third thereof. The plaintiff acquired, there. containing the usual covenants of seisin and fore, his one-third interest in the east half warranty; the deed of trust being executed by the payment of one-sixth of the original by Kessler in person and by the attorney consideration, and one-third of the considin fact of Hoge, he being absent from the eration paid to Baumgarten and Partridge territory. The plaintiff was not a party to the for the conveyance from them, and the trust negotiations for the loan; was not aware resulting therefrom. It is conceded by the till afterwards of the execution of the deed appellant that, if the several parties held of trust, and did not consent thereto; and their interests in the original purchase unreceived no portion of the $6,000.

der a resulting trust, the division would be The above facts are undisputed. It is al- valid, even if by parol; but he contends leged by the plaintiff in his complaint that that, because Kessler executed a declaratiop Frank Pierce, who, as the agent of Mallory, of trust, they then held under an express, made the loan, prepared the deed of trust, and not a resulting, trust. The declaration and paid the money, had notice during the of trust was not recorded, and became no negotiations, and before the deed was exe- part of the record title to the premises. It

2. Under Comp. Laws, § 4643, a person stealing a horse, cow, or other animal therein mentioned is guilty of grand larceny, irrespective of the value of the property stolen.

Clayton Gannett, convicted of grand larceny for stealing live stock, being sentenced to imprisonment in the penitentiary, makes application for a writ of habeas corpus. Denied.

D. D. Houtz and S. A. King, for petitioner. The United States Attorney, for respondent.

being admitted that a trust resulted from the original purchase and payment of the consideration by the several persons contributing thereto, we do not think that the mere fact that Kessler declared in writing what the law had already created, changed the character of the trust. The plaintiff did not on the trial introduce the declaration of trust, but showed the transaction, and relied upon the trust created by law in his favor therefrom. We think the parties held under a resulting trust in their favor, and that the division was valid, if there had been no deeds exchanged. Freem. Coten. $ 399. The respondent claims that the evidence shows sufficient performance of the contract to divide the property to take the case out of the statute of frauds, but we do not deem ít necessary to consider that question. We think it apparent that the division was not void as within the statute of frauds, and that the court properly held that the plaintiff, at the time of the execution of the deed of trust, was the owner of an undivided one-third of the real estate covered thereby. When Kessler was called as a witness by plaintiff, and asked whether he informed Pierce of the plaintiff's interest in the property prior to the execution of the deed of trust thereon, the defendant objected thereto on the ground that the witness could not impeach, by his testimony, the deed of trust executed by him. Having in the deed of trust made covenants of seisin and warranty, Kessler would be estopped from denying the same in his own behalf, unless for such fraud or mistake as would impeach its validity. But we know of no rule of law that would preclude the plaintiff, who was not a party to the deed of trust, and not bound by the covenants of Kessler, from calling Kessler, and showing by him that, notwithstanding the covenants of the deed, the grantee therein had knowledge that the plaintiff was the equitable owner of an interest in the property described in the deed. There being no error in the record, the judgment is affirmed.

BARTCH, J. The petitioner was indicted, tried, and convicted of the crime of grand larceny in the district court of the First judicial district, and was on the 9th day of March, 1894, sentenced to imprisonment in the penitentiary for a term of two years. He was charged with having committed the offense by stealing five steers and five cows. He bases his claim for release on the ground that the indictment under which he was convicted does not charge an offense under any law of this territory, or, if it does charge an offense, it is petit larceny; and his counsel contend that the statute under which the proceedings which resulted in his conviction were had was repealed before the indictment was found. The said statute was first enacted in 1876, and, as then passed, it provides that the stealing of personal property is grand larceny “when the property taken is a horse, mare, gelding, cow, steer, ox, bull, calf, mule, jack, jenny, goat, or sheep." See Act Feb. 18, 1876, § 278. This section does not define the crime of larceny, but it is a part of chapter 5 of said act, which chapter contains the general law in relation to larceny, divides it into two degrees, and defines and prescribes the punishment for each degree. Subdivision 3 of section 278, above quoted, was amended by inserting the word "calf" after the word "mare," and the word "heifer" after the word "cow," and the word "or" before the word “jenny," and by striking out the words "goat or sheep." Sess. Laws 1886, c. 24. It will be noticed that goats and sheep were withdrawn from the operation of the act in relation to larceny. This amendment was approved March 11, 1886, and the section, as thus amended, is the same as section 4643, Comp. Laws Utah 1838, under which the indictment in this case was found. It is insisted by counsel for the petitioner that said subdivision 3 was re. pealed by section 8, c. 11, Sess. Laws 1856 which section reads as follows: "Any person who shall steal, embezzle, or knowingly kill, sell, drive away, lead away, ride away, or in any manner deprive another of the im. mediate possession of any neat cattle, horse, goat, sheep, mule, ass or swine; or who shall steal, embezzle, or knowingly kill, sell, drive away, lead away, ride away, or in any manner apply to his own use any neat cattle, horse, goat, sheep, mule, ass or swine, the owner of which is unknown; or who shall knowingly purchase or receive of any person

SMITH and KING, JJ., concur.

(11 l'tah, 283)

In re GANNETT. (Supreme Court of Utah. Feb. 23, 1895.) LARCENY OF LIVE STOCK-IMPLIED REPEAL OF

STATUTE. 1. Act March 11, 1886, making the stealing of horses, cows, etc., grand larceny, was not impliedly repealed by Sess. Laws 1886, c. 11, $ 8, providing that any person who shall steal, embezzle, or knowingly drive away, or deprive another of the immediate possession of, any beat cattle, horse, goat, etc., or who shall steal, embezzle, or apply to his own use any such animal, the owner of which is unknown, or who shall purchase it from any one not having the lawful right to it, shall be deemed guilty of a ielony, as the latter act was intended to apply to such acts only as were not theretofore larceny.

not having the lawful right to sell or dispose the felonious taking of any personal prop of the same, any neat cattle, horse, goat, erty. It is a crime malum in se, and is the sheep, mule, ass or swine, shall be deemed wrongful and fraudulent taking and carryguilty of a felony, and shall be punished by ing away the personal property of another, imprisonment not exceeding ten years, and with the felonious intent to convert them to fined not exceeding five thousand dollars at the offender's own use, and make them his the discretion of the court."' The act, of own property without the owner's consent. which this section forms a part, was also The later law, or that of 1886, relates to the approved March 11, 1886. It will be ob- subject of branding, herding, and care of served that chapter 24 of the Laws of 1886, stock, and punishing certain offenses conamending subdivision 3 of the act of 1876, cerning the same. The offenses defined and containing said section 8, was approved and denounced by this act are, in their nature, took effect on the same day, and that chap- mala prohibita, and tbe punishments providter 24 withdraws goats and sheep from the ed are different from those in the former act. operation of the general statute in relation It is true the term “steal" is employed in the to larceny, and chapter 11 includes them said section 8, but we think it was there within its terms, as provided in said section used in its popular and broader, and not in 8. The two enactments, having been ap- its purely technical sense, and refers to any proved and having taken effect on the same wrongful taking, although the taking may day, and referring to the same subject, may not be accompanied with a felonious intent, be treated as parts of the same statute. or with the intent to deprive the owner perManlove v. White, 8 Cal. 377. If the con- manently of his property, as is the case in tention of counsel for petitioner be correct, larceny. Where a person wrongfully dethen said subdivision 3 of the general law prives another of the "immediate possession" of larceny must be repealed by implication, of any of the property mentioned in said for chapter 11 of the Laws of 1886 does not section 8, though it be without a felonious in express terms repeal said subdivision. It intent, he commits the offense denounced by is a familiar rule of construction that repeals the statute. The technical crime of larceny by implication are not favored, and a subse- is committed only when the unlawful act is quent affirmative statute, general in its accompanied with a felonious intent, and terms, will not be so construed as to repeal, such is the case under the former law. It by implication, a prior statute, unless there may thus be seen that the whole purview of is such repugnancy between the two as to the two statutes is different, and that the rereuder them irreconcilable upon any rule of pugnancy between them, if any exists, is apstatutory construction, and then the later parent, and not real, and can be harmonized law in point of time will abrogate the former by the application of the rules of statutory only to the extent of such repugnancy. Even

construction. Where the whole purview of when two statutes relate to the same subject, two statutes is different, and there is no esboth will be given effect, if possible; but sential repugnancy between them, they will when the later law embraces new provisions, stand together, in the absence of a repealing and covers the whole subject of the former, clause, even though they refer to the same clearly indicating that the legislature intend- subject. Mills v. State, 23 Tex. 295; People ed it as a substitute for the former, then the V. McAllister (Utah) 37 Pac. 578; 23 Am. & later will operate as a repeal of the former Eng. Enc. Law, p. 482. It is evident that law. No intention to repeal will be presum- the legislature, by the enactment of 1886, ined. It must be ascertained from the con- tended to provide a punishment for certain text, the same as legislative intent is ascer- offenses against live stock, which were akin tained in other respects. The repeal by im- to stealing, but technically were not larceny, plication results from an enactment the terms and which were not covered by the general of which are in conflict with an earlier act, law relating to larceny. and the necessary operation of which cannot From these considerations, we are of the be harmonized with the necessary effect of opinion that subdivision 3 of section 278 of the later law. In such case the last expres- the act of 1876 was not repealed by the act sion of the legislative will must prevail. of 1886, nor can an offense perpetrated under Suth. St. Const. $ 138; Robbins v. State, 8 said subdivision be punished as petit larOhio St. 131, 191; People v. Barr, 44 Ill. ceny. The degree of such an offense does 198; U. S. v. Claflin, 97 U. S. 546; Hume v. not depend on the value of the property Gossett, 43 Ill. 297.

stolen, because it is made grand larceny by In the case at bar, upon careful examina- the statute, regardless of value, and must be tion, there appears to be no conflict between punished likewise. This view appears to be the two statutes, because their terms can be in accord with the action of the legislature harmonized, and the necessary operation of respecting the act of 1876; for, as has been the later does not interfere with the opera- observed, on the same day on which chapter tion and effect of the earlier law. The for- 24 of the Laws of 1886 was enacted, amendmer relates to the subject of larceny, divides ing said subdivision 3 by withdrawing goats the saine into two degrees, and prescribes and sheep from its operation, the legislature the punishment for each degree. Larceny enacted said chapter 11, which included goats was an offense at common law, and includes and sheep within its provisions. Again, in

Y.S9P.No.4–32

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