his own behalf, to answer the following question: "Did you at that time honestly believe that the money was yours, and that you had a right to take it?" to which question the prosecuting attorney objected, for the reason that it was incompetent, and the court sustained the objection. We think it was competent for the defendant to testify what his intent, belief, and motive were at the time of the alleged robbery; and the court, in excluding this testimony, seems to have proceeded upon the theory in part (and the charge indicates it) "that the intention of the parties is to be derived alone from the act done; from that and the surrounding circumstances determine what he intended to do"; and that in arriving at the intention the defendant's own statement and testimony was not to be considered. This undoubtedly was the common-law rule, which had its origin when the defendant was not allowed to be heard in his own behalf. This point is discussed in the case of People v. Farrell, 31 Cal. 576. The court there says: "The rule that the intent must be inferred from the acts and words of the party had its foundation in necessity, created by the rule which excluded parties in interest from the witness stand. That necessity is now removed by the abrogation of the rule which created it; and the legal tenet that actions must speak for themselves, and words furnish their own interpretation, is much modified, if not wholly abrogated, by the recent innovations upon the common law by which parties are allowed to testify in their own behalf. Before that time there was no way of ascertaining the motives and intentions of parties except by inference from their acts and sayings, and all experience shows that they may frequently, if not at all times, prove very imperfect guides. It is no answer to say that this enables a party to substitute a false motive for the true one, or to convert words spoken in one sense into another. If the argument proves anything, it proves too much, and shows that the radical change which has been made is in all respects founded in folly, rather than wisdom. For the truthfulness of parties when upon the witness stand we must depend, as in the case of other witnesses, upon the obligations of their oath, and their reputation for truth and veracity. If these can be relied upon for the truth of statements made in reference to acts and words of which the eye and ear may take notice, they may, for the same reason, be accepted as guaranties for the truth of statements made in respect to motives and intents of which the mind or inner man alone can take cognizance. Nor is there, in our judgment, any well-grounded reason for apprehending that this rule will obstruct, rather than advance, the ends of justice. There is no more danger of imposing upon the jury falsehood or pretense in respect to motives and intents than there

is of doing the like in respect to visible or external circumstances. The jury can as readily distinguish between the false and true in respect to the former as to the latter. If the motive or intent assigned is inconsistent with the external circumstances, it must be discarded as false; if, on the contrary, they are consistent, there is no reason why they may not be true." This doctrine was recognized in State v. Harrington, 12 Nev. 135, and followed. In that case the following question was asked the defendant by his counsel: "At the moment of the discharge of the pistol at the deceased, did you or did you not really believe that you were in danger of losing your life or receiv ing great bodily harm?" and Mr. Justice Leonard, in concluding his discussion on this question, says: "We are entirely satisfied that, for the purpose of showing the condition of his mind at the time, and to establish the necessary conditions of justification, the defendant had the right to answer the question objected to, and that it was for the jury to consider it, like all other testimony proper to be given in the case." In White v. State, 53 Ind. 595, on the trial of an indictment for larceny, it was held competent for the defendant to testify as to what his intentions were at the time the goods came into his possession; and this doctrine is cited approvingly by Thompson in his works on Trials. In modern times the rule has been extended not only to criminal cases, but to civil cases as well, whenever the question of motive or intention is involved. This court passed on this question in the case of Conway v. Clinton, 1 Utah, 215. In that case "the defendant was charged with maliciously and wantonly destroying the goods of the plaintiff," and it was held that the defendant could "state what motive he had, if any other than to obey the writ, in doing the act complained of"; and also whether at that time he had. ill will against the plaintiff. We think the principle involved in the case at bar is the same, and that it was error to refuse the appellant the right to testify as to his belief at the time of the alleged robbery.

The defendant requested the following instructions to be given to the jury: "That if they should find that the defendant acted under a bona fide impression and honest belief that the money taken was his own, and that he had a right to it, they render a verdict of not guilty." The defendant could not have been guilty of robbery in taking his own property, whatever other offense he may have committed in the taking. In all criminal cases the question of intent is an important one. If this element is lacking, the general rule is that no offense has been committed. This rule is not only humane, but a contrary one would be opposed to all the principles which underlie human conduct as respects the bearing of individuals towards each other, and also as regards their position

towards the state. And so the law is that, when evil intent is lacking, the act or omission, which otherwise would constitute an offense, is robbed of its criminality. The rule governing this class of cases seems to be well settled and thoroughly defined. In a note in 70 Am. Dec. 188 (State v. McCune), where a number of authorities are collected, this proposition is laid down: "When the prisoner takes the property under a bona fide impression that the property belongs to him, he commits no robbery, for there is no animus furandi." Long v. State, 12 Ga. 293; Brown v. State, 28 Ark. 126,-where the taking was in the presence of others, as was the case at bar. Again, it is held that when a creditor compels the payment of his debt by the use of violence, he is not guilty of robbery, for there is no animus furandi. State v. Hollyway, 41 Iowa, 200. In the Iowa case, Miller, C. J., says: "In robbery, as in larceny, it is essential that the taking of the goods be animo furandi. Unless the taking be with a felonious intent, it is not robbery. If a man, under a bona fide belief that the property is his own, obtain it by menaces, there is a trespass, but no robbery. Though the defendant take the goods with violence, or by putting in fear, yet, if he do so under a bona fide claim, it is no robbery, for the reason that the felonious intent is wanting." "In all cases of this kind the question whether the act is done with a felonious 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 entitled to have the law governing his case given to the jury for their guidance, and in this case the question of honest belief and bona fide intention should have been submitted to and passed upon by the jury under proper instructions. See Com. v. Stebbins, 8 Gray, 492; 2 Russ. Crimes (9th Ed.) p. 104; 2 Rosc. Cr. Ev. (8th Ed.) p. 1157. In this case the court charged the jury as follows: "I also charge you that it is not material for the prosecution to prove who owned the money, who had the best right to it; the charge is that it was taken from the possession of Nichols, and that is the statute. The statute, as I have already read to you, forbids the taking of personal property from the possession of another by means of force or fear; that is, taking it from his person. It is sufficient taking from the person if the evidence convinces you that the party having personal property in his possession is put in fear, or compelled to lay it down, surrender it up, give it to another, or lay it down where the other person may take it up, or where any other person may take it up. It is sufficient if he is compelled to part with his possession of it, being put in fear, or if it is forcibly taken from off his person; either is a sufficient taking from the person. In this case I charge you that if Nichols had this money in his possession, and the defendant, by putting him in fear, compelled him to

either surrender it up or compelled him to permit the defendant to take it out of his pocket. or off his person, it is an offense under the statute, provided it was committed within the time and at the place designated in the indictment." Under the authorities, we think the instruction is incorrect. To constitute the offense of robbery, there must be-First, a taking of the property; second, the taking must be with a felonious intent; third, it must be from the person or presence of another; fourth, against his will; and, fifth, accomplished by means of force or fear. 3 Greenl. Ev. § 223. And, if either of these elements is lacking, the offense cannot be robbery. We are of the opinion that it was material, and the burden of proof was on the prosecution to prove the money was owned by some person other than the defendant, for, if the money belonged to him, and it was wrongfully in the possession of another, he would not be guilty of robbery, as the animus furandi would be wanting. For the reasons above set forth, we are of opinion that the motion for a new trial should have been allowed. The evidence excluded and the charge with reference to the felonious intent were clearly erroneous, and prejudicial to the rights of the appellant; and the case is therefore reversed, and a new trial granted.

BARTCH, J., concurs.

(11 Utah, 108)

ROGERS v. DONNELLAN.

COVE

(Supreme Court of Utah. Feb. 23, 1895.) RESULTING TRUST WHAT CONSTITUTES NANT IN DEED-EFFECT ON GRANTORESTOPPEL TO TESTIFY.

1. Six persons purchased land, paying equal portions of the purchase price, and taking the deed in the name of one of them, K., who executed an instrument stating that he held it in trust for all, which was not recorded. Subsequently a partition was made, whereby K., with the consent of plaintiff and H., others of the cotenants, conveyed one-half the land to the other three parties, and they in turn conveyed to him their interest in the other portion, which he was to hold in trust for plaintiff and H. K., plaintiff, and H. paid equal portions of the bonus paid by them in the partition. Held, that there was a resulting trust in favor of plaintiff in the portion conveyed to K., as to a one-third interest therein.

2. A trustee is not precluded by his covenant of seisin and warranty in a deed from testifying, in an action by the cestui que trust to establish the trust as against the grantee, that he notified the grantee of the interest of the cestui que trust.

Appeal from district court, Salt Lake county; before Justice George W. Bartch.

Action by Alexander Rogers against John W. Donnellan. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank Pierce, for appellant. Sutherland & Howatt, for respondent.

MERRITT, C. J. This action was brought to have the plaintiff's title to an undivided

one-third interest in certain real estate in Salt Lake City established and confirmed against the defendant; to have it decreed that a certain deed of trust executed by Edward A. Kessler and Enos D. Hoge to the defendant, as trustee, is no lien thereon; and for an injunction perpetually enjoining the defendant and his successors from selling the same under the power contained in the deed of trust. There was a decree for the plaintiff, and defendant appeals.

The record discloses that on December 23, 1889, Edward A. Kessler, Enos D. Hoge, Joseph Baumgarten, Mr. Wallace, Harriett A. Partridge, and the plaintiff purchased certain real estate in Salt Lake City for $30,000, each of them paying one-sixth of the consideration, or $5,000. The deed was taken in the name of Kessler, who, within a short time thereafter, executed a written declaration that he held the title in trust for himself and associates, one-sixth to each. The declaration of trust was not recorded. A short time prior to September 23, 1892, the several owners agreed to a division of the real estate, whereby the plaintiff, Kessler, and Hoge should take the east half thereof, and Baumgarten, who had previously purchased Wallace's interest in the property, and Partridge should take the west half; Kessler and Hoge and the plaintiff to pay to Baumgarten and Partridge $1,600, the east half being considered that much more valuable than the west half. On September 23, 1892, in pursuance of this agreement, Baumgarten and Partridge conveyed to Kessler their undivided one-half of the east portion of the property, and Kessler, with the consent of Hoge and the plaintiff, executed to Baumgarten and Partridge a deed which purported to convey to them the undivided one-half of the west portion of the property; and Kessler, Hoge, and the plaintiff paid to Baumgarten and Partridge $1,600, each of them contributing one-third thereof. On September 21, 1892, Kessler conveyed to Hoge an undivided one-third interest in the east half and on the same day Kessler and Hoge executed to the defendant, as trustee for D. D. Mallory, a deed of trust upon the east half, to secure a loan to Kessler and Hoge of $6,000, the deed making no mention of the interest of the plaintiff, and containing the usual covenants of seisin and warranty; the deed of trust being executed by Kessler in person and by the attorney in fact of Hoge, he being absent from the territory. The plaintiff was not a party to the negotiations for the loan; was not aware till afterwards of the execution of the deed of trust, and did not consent thereto; and received no portion of the $6,000.

The above facts are undisputed. It is alleged by the plaintiff in his complaint that Frank Pierce, who, as the agent of Mallory, made the loan, prepared the deed of trust, and paid the money, had notice during the negotiations, and before the deed was exe

cuted or the money paid, that the plaintiff was interested in the property covered by the deed of trust. This is denied by the defendant in his answer. Upon this issue the court below found for the plaintiff, and the defendant, on appeal, admits the sufficiency of the evidence to warrant the finding, but insists that the court below erred in two particulars: (1) In holding that the plaintiff was the owner of one-third of the property covered by the deed of trust, instead of only one-sixth thereof; and (2) in permitting Kessler, when called as a witness by the plaintiff, to answer, over the objection of the defendant, that he informed Pierce, the agent of Mallory, before the execution of the deed of trust, of the interest of the plaintiff in the property. It is conceded by appellant that the plaintiff had an undivided one-sixth interest in the whole property, but it is contended that he did not convey his interest in the west half to Baumgarten and Partridge, and took nothing by the conveyance by Baumgarten and Partridge of their interest in the east half to Kessler. This is claimed to be so because the plaintiff was not a party to either conveyance, and that, so far as the plaintiff was concerned, it was only a parol partition of the property, and void under the statute of frauds. What the effect was of the conveyance by Kessler, with the consent of plaintiff, to Baumgarten and Partridge, of the undivided one-half of the west portion, we need not consider, as it is not involved in this case. But we think it is clear that when Baumgarten and Partridge conveyed their portion in the east half to Kessler, under an agreement with Kessler, Hoge, and the plaintiff, each of them paying one-third of the $1,600 paid therefor, the title conveyed by Baumgarten and Partridge vested in Kessler, in trust for Kessler, Hoge, and the plaintiff, and that thereupon the plaintiff became the equitable owner of an undivided one-third of the east half. Originally he had a one-sixth interest, the title to which was in Kessler in trust for him. By the conveyance from Baumgarten and Partridge to Kessler, the plaintiff became the equitable owner of an undivided one-sixth in the east half, and thereafter was the owner of an undivided onethird thereof. The plaintiff acquired, therefore, his one-third interest in the east half by the payment of one-sixth of the original consideration, and one-third of the consideration paid to Baumgarten and Partridge for the conveyance from them, and the trust resulting therefrom. It is conceded by the appellant that, if the several parties held their interests in the original purchase under a resulting trust, the division would be valid, even if by parol; but he contends that, because Kessler executed a declaration of trust, they then held under an express, and not a resulting, trust. The declaration of trust was not recorded, and became no part of the record title to the premises. It

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 it 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.

SMITH and KING, JJ., concur.

(11 Utah, 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 eat 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 felony, as the latter act was intended to apply to such acts only as were not theretofore larceny.

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.

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 1888, 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 1886 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 immediate 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

not having the lawful right to sell or dispose of the same, any neat cattle, horse, goat, sheep, mule, ass or swine, shall be deemed guilty of a felony, and shall be punished by imprisonment not exceeding ten years, and fined not exceeding five thousand dollars at the discretion of the court." The act, of which this section forms a part, was also approved March 11, 1886. It will be observed that chapter 24 of the Laws of 1886, amending subdivision 3 of the act of 1876, containing said section 8, was approved and took effect on the same day, and that chapter 24 withdraws goats and sheep from the operation of the general statute in relation to larceny, and chapter 11 includes them within its terms, as provided in said section 8. The two enactments, having been approved and having taken effect on the same day, and referring to the same subject, may be treated as parts of the same statute. Manlove v. White, 8 Cal. 377. If the contention of counsel for petitioner be correct, then said subdivision 3 of the general law of larceny must be repealed by implication, for chapter 11 of the Laws of 1886 does not in express terms repeal said subdivision. It is a familiar rule of construction that repeals by implication are not favored, and a subsequent affirmative statute, general in its terms, will not be so construed as to repeal, by implication, a prior statute, unless there is such repugnancy between the two as to render them irreconcilable upon any rule of statutory construction, and then the later law in point of time will abrogate the former only to the extent of such repugnancy. Even when two statutes relate to the same subject, both will be given effect, if possible; but when the later law embraces new provisions, and covers the whole subject of the former, clearly indicating that the legislature intended it as a substitute for the former, then the later will operate as a repeal of the former law.

No intention to repeal will be presumed. It must be ascertained from the context, the same as legislative intent is ascertained in other respects. The repeal by implication results from an enactment the terms of which are in conflict with an earlier act, and the necessary operation of which cannot be harmonized with the necessary effect of the later law. In such case the last expression of the legislative will must prevail. Suth. St. Const. § 138; Robbins v. State, 8 Ohio St. 131, 191; People v. Barr, 44 Ill. 198; U. S. v. Claflin, 97 U. S. 546; Hume v. Gossett, 43 Ill. 297.

In the case at bar, upon careful examination, there appears to be no conflict between the two statutes, because their terms can be harmonized, and the necessary operation of the later does not interfere with the operation and effect of the earlier law. The former relates to the subject of larceny, divides the same into two degrees, and prescribes the punishment for each degree. Larceny was an offense at common law, and includes v.39P.no.4-32

the felonious taking of any personal prop erty. It is a crime malum in se, and is the wrongful and fraudulent taking and carrying away the personal property of another, with the felonious intent to convert them to the offender's own use, and make them his own property without the owner's consent. The later law, or that of 1886, relates to the subject of branding, herding, and care of stock, and punishing certain offenses concerning the same. The offenses defined and denounced by this act are, in their nature, mala prohibita, and the punishments provided are different from those in the former act. It is true the term "steal" is employed in the said section 8, but we think it was there used in its popular and broader, and not in its purely technical sense, and refers to any wrongful taking, although the taking may not be accompanied with a felonious intent, or with the intent to deprive the owner permanently of his property, as is the case in larceny. Where a person wrongfully deprives another of the "immediate possession" of any of the property mentioned in said section 8, though it be without a felonious intent, he commits the offense denounced by the statute. The technical crime of larceny is committed only when the unlawful act is accompanied with a felonious intent, and such is the case under the former law. It may thus be seen that the whole purview of the two statutes is different, and that the repugnancy between them, if any exists, is apparent, and not real, and can be harmonized by the application of the rules of statutory construction. Where the whole purview of two statutes is different, and there is no essential repugnancy between them, they will stand together, in the absence of a repealing clause, even though they refer to the same subject. Mills v. State, 23 Tex. 295; People v. McAllister (Utah) 37 Pac. 578; 23 Am. & Eng. Enc. Law, p. 482. It is evident that the legislature, by the enactment of 1886, intended to provide a punishment for certain offenses against live stock, which were akin to stealing, but technically were not larceny, and which were not covered by the general law relating to larceny.

From these considerations, we are of the opinion that subdivision 3 of section 278 of the act of 1876 was not repealed by the act of 1886, nor can an offense perpetrated under said subdivision be punished as petit larceny. The degree of such an offense does not depend on the value of the property stolen, because it is made grand larceny by the statute, regardless of value, and must be punished likewise. This view appears to be in accord with the action of the legislature respecting the act of 1876; for, as has been observed, on the same day on which chapter 24 of the Laws of 1886 was enacted, amending said subdivision 3 by withdrawing goats and sheep from its operation, the legislature enacted said chapter 11, which included goats and sheep within its provisions. Again, in