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(50 Or. 224)

therefor, instruct that the jury may find defendSTATE v. REYNER.

ant guilty of the lesser crime, if they entertain

a reasonable doubt as to his guilt as to the (Supreme Court of Oregon. July 30, 1907.)

greater offense.

9. SAME-CREDIBILITY OF WITNESS-EVIDENCE 1. INDICTMENT AND INFORMATION-OBJECTION

-INSTRUCTIONS. AT TRIAL--SUFFICIENCY OF Facts.

Under B. & C. Comp. $ 852, providing that By express provision of B. & C. Comp. $

a witness may be impeached by the record of 1363, objection to an indictment that the facts

the judgment of his conviction of a crime, it is stated do not constitute a crime may be taken

proper to instruct that the judgment of convicat the trial, under a plea of not guilty.

tion of defendant of assault may be considered [Ed. Note.For cases in point, see Cent. Dig. for the purpose of determining the credit to be vol. 27, Indictment and Information, $8 633, given his testimony. 634.] 2. LARCENY-FROM THE PERSON.

Appeal from Circuit Court, Union County ; Where defendant proposed to F. an ex

T. H. Crawford, Judge. change of vests, and, on F. removing his vest F. K. Reyner was convicted of larceny, and handing it to defendant, defendant turning

and appeals. Affirmed. his back to F. took from the vest and retained a roll of bills, and then handed the vest back to F., the stealing was larceny from the person,

C. H. Finn, for appellant. A. M. Craw

. within B. & C. Comp. § 1800, prohibiting such ford, Atty. Gen., for the State. thefts, and prescribing the measure of punishment therefor, provided the taking was without F's knowledge or consent, or so sudden as to

MOORE, J. The defendant, F. K. Reyner, preclude resistance before asportation.

was convicted of the crime of larceny and 3. SAME-NATURE—COMPOUND CRIMES.

sentenced to imprisonment in the penitenThe crimes of larceny from a store (B. & C. tiary for the term of three years, from which Comp. $ 1799) and larceny from the person (sec

judgment he appeals. tion 1800) are compound larcenies, consisting of simple larceny (section 1798), aggravated by

His counsel contend that the information the circumstance of taking the property from does not state facts sufficient to constitute a a store or the person of another, in which the

crime, and that the evidence produced at the value of the property is not an ingredient of the oftense, as in case of simple larceny.

trial was insufficient to warrant a conviction, 4. SAME-STATING TWO OFFENSES-WAIVER OF

and hence the court erred in denying their reOBJECTION.

quest to instruct the jury, as follows: "I Objection that an indictment contravenes charge you that, under the testimony, you B. & C. Comp. & 1308, requiring the indictment

must find the defendant not guilty.” The to charge but one offense, and in one form only, which section 1357, subd. 3, makes ground for

information, omitting the title, the contra demurrer, and section 1365 provides can be formam statuti clause, the signature of the raised only by demurrer, not having been so prosecuting officer, the names of the witnessraised, is waived.

es, and other indorsements, is as follows: [Ed. Note.-For cases in point, see Cent. Dig.

“F. K. Reyner, the above-named defendant, vol. 27, Indictment and Information, § 633.]

is accused by the district attorney for the 5. SAME-SUFFICIENCY TO SUSTAIN CONVIC

Tenth judicial district of the state of Oregon, TION.

in this information, of the crime of larceny An information charging larceny from a store, a compound larceny, and also alleging the

in a building. committed as follows: The value of the property, not being demurred to as said F. K. Reyner did, in the county of Uncharging two offenses, will sustain a verdict and

ion, and state of Oregon, on the 15th day of judgment based on a simple larceny; the verdict determining the value of the property taken.

November, 1906, wrongfully, unlawfully, and [Ed. Note.-For cases in point, see Cent. Dig.

feloniously take, steal, and carry away in a vol. 27, Indictment and Information, $ 618.] certain store building, to wit, the Owl Saloon, 6. CRIMINAL LAW-APPEAL-SUFFICIENCY OF

a certain sum of money, to wit, the sum of EVIDENCE-WAIVER OF OBJECTION.

$80, lawful money and currency of the Unit. There being some evidence on the trial to ed States, the denominations thereof to the establish the identity and value of the money district attorney unknown, said money being alleged to have been stolen, objection to the sufficiency of the proof thereon is waived; it

then and there the personal property of one not having been made other than by a request Louie Fagin, and of the value of $80.” No for an instruction to find a verdict of not guilty, demurrer to the formal accusation was internot particularly specifying the ground on which

posed; but, a plea of not guilty having been it was based.

entered, the defendant's counsel objected and 7. SAME-DISCRETION OF TRIAL COURT-QUESTIONS AFFECTING CREDIBILITY OF WITNESS

excepted to the introduction of any incrimES.

inating testimony against their client. Such The necessity of answering the question evidence, though controverted, tended to show asked on cross-examination of a witness, wheth

that, at the time stated in the information, er he did not "bum" his meals off free-lunch counters, is a matter within the discretion of the

the defendant was temporarily employed as trial court, not to be interfered with, in the a bartender in a saloon at La Grande; that absence of abuse of its discretion.

the prosecuting witness, Louie Fagin, visited 8. SAME - INSTRUCTIONS-NECESSITY OF RE- such resort, having in his vest pocket a roll QUEST.

of bills, whereupon the defendant proposed Where an information charges an offense which necessarily includes a lesser offense, it is

an exchange of vests with him; that Fagin 220t necessary that the court, without a request

removed his vest and handed it to the de

fendant, who, turning his back to such witness, took from the garment and retained the roll of bills, and thereupon handed the rest back to the owner. Fagin, as a witness for the state, in describing the money alleged to have been taken from him, testified that the night preceding his loss he left with one W. C. Hesse, at La Grande, for safe-keeping, "two $20 pieces in paper, four $10 bills, and one $10 in gold,” and the next morning received the same, placing the paper money in his vest pocket and the gold in a purse, which he carried in his trousers pocket. The testimony of this witness is corroborated by that of Hesse as to the denomination and kind of money left with and given back by him. II. C. Cotner, the proprietor of the saloon where the defendant was employed. testified that, upon returning to his place of business, after a short absence, he found Fagin censuring the defendant for taking from him a package of paper money, saying: "This foreigner was accusing this man Reyner, over there, that he had taken a roll of greenbacks from him, his money, and he pulled open his coat that way, and said: 'Ile took it out of there.' *

Of course, he talked broken, but he made me understand there were $85 in it in greenbacks, paper money, and he says, "There is two $200 greenbacks, bills,' and he made me understand the balance of it was $5 and $10 bills." W. W. Crawford testified that he was in Cotner's saloon, November 15, 1906, and saw Fagin take “from his pocket what looked like greenback bills, and put them back in his coat pocket." The foregoing is the only testimony tending in any manner to identify the kind of money alleged to have been taken, or to establish its value, and, based on such evidence, the court said to the jury: "When you retire, gentlemen, you will select one of your number as foreman, who will sign whatever verdict you agree upon. If you are satisfied from the evidence in this case beyond a reasonable doubt of the guilt of the defendant, as I have indicated to you, you will sign and return this verdict: “We, the jury in the above-entitled criminal action, find the defendant, F. K. Reyner, guilty of larceny, and the value of the property stolen $filling in the number of dollars, the value of the property stolen, and sign it above the word 'Foreman.'” An exception to this part of the charge was reserved by the defendant's counsel. Pursuant to the direction, , however, the jury inserted in the verdict the following: "80.00."

The information hereinbefore set out is evidently based on an alleged violation of section 1799, B. & C. Comp., which, so far as involved herein, is as follows: “If any person shall commit the crime of larceny in any dwelling house, banking house, office, store, shop, or warehouse * *

and commit the crime of larceny therein, such person, upon conviction thereof, shall be punished," etc.

As this section is entitled "Larceny in House, Boat, or Public Building," it is argued that the crime of larceny in a building is not classified as a special offense under our stat. ute, unless such structure is used by the public, and the defect in the information was not remedied by the averment “in a certain store building," for the idea intended to be expressed by the use of that phrase is to charge the commission of an offense in a building, rather ihan in a store.

The failure of an information to state facts sufficient to constitute a crime may be taken advantage of at the trial, as was done in the case at bar, under plea of not guilty (B. & C. Comp. $ 1365), thereby making an examination of the charging part of the formal accusation necessary. Before considering such question, however, attention is called to the testimony, which, it will be remembered, tended to show that the money alleged to have been stolen was taken by the defendant from a rest which was delivered to him by Fagin, the owner of the property. If it be assumed that the money was abstracted from the garment under the circumstances adverted to, the stealing was larceny from the person, provided the taking was without Fagin's knowledge or consent, or so suddenly as to preclude resistance before asportation. Rapalje, Larceny, $ 16; McClain, Crim. Law, $ 575; Commonwealth v. Lester, 129 Mass. 101. Our statute, prohibiting such thefts and prescribing the measure of punishment therefor, is as follows: "If any person shall commit the crime of larceny by stealing from the person of another, such person shall, upon conviction thereof, be punished," etc. B. & C. Comp. $ 1800. The conviction herein was undoubtedly based on a violation of Id. $ 1798, as amended (Laws 1905, p. 83), which, so far as considered material in the case at bar, is as follows: If any person shall steal any goods or chattels, or any government note, bank note,

本 * which is the property of another, such person shall be deemed guilty of larceny, and upon conviction thereof, if the property stolen shall exceed in value $35, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years; but if the property stolen shall not exceed the value of $35, such person, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than one year, or by fine not less than twenty-five nor more than one hundred dollars." An examination of the provisions of the stat. ute relating to stealing from any dwelling house, etc., or from the person of another, will show that the commission of such crimes. is a compound larceny, consisting of simple: larceny, aggravated by the circumstance of taking personal property of the class designated from a building in which it has been placed for safety, or from the person of another, who is awake and has the goods, chat

tels, or choses in action under his immediate in the respect indicated, it is quite probable observation and protection (State v. Patter- that, notwithstanding both parties had restson, 98 Mo. 283, 11 S. W. 728), in which cases ed, the cause would have been opened so the value of the property taken is not an in- that evidence of the kind and value of the gredient of the offense. Larceny in a dwell- bills might have been supplied. This court ing house or from the person of another is

was established to correct, after careful detherefore a crime of greater magnitude than liberation, the errors alleged to have been simple larceny, and, either of the former be

committed in the hurry of a trial by a circuit ing a crime consisting of degrees, the larger court; but, unless the latter tribunal has had offense necessarily includes the smaller. an opportunity to pass upon the question that The information stated the value of the

is brought to this court for examination, the property taken, but such averment was un

consideration thereof would not be a review, necessary, and, if it be assumed that the

as contemplated by the rules of law, but the designation of "a certain store building" was

contemplation of an independent inquiry, a sufficient compliance with the requirement which, if sanctioned, would permit a party of the statute to make the offense larceny in

to an appeal to try a cause upon an entirely a house of the specified class, the accusation

different theory from that pursued in the might have been construed as stating facts

court below. To obviate such a system of constituting the commission of two crimes.

procedure, a party who seeks to review the Notwithstanding it is enacted that a written

action of a trial court on account of a lack of accusation must charge but one crime, and in

evidence, of which he complains, is required one form only (B. & C. Comp. $ 1308), and a

particularly to point out to it the legal prinfailure to comply therewith renders the plead

ciple for the maintenance of which he coning demurrable (Id. $ 1357, subd. 3), if the in

tends, and, if he fails to do so at the proper formation is not thus challenged on account of

time, any error, unless there is a total failits double aspect, the defect is waived. Id.

ure of proof, is necessarily waived. State v. § 1305; State v. Lee, 33 Or. 506, 51; Pac. 415; State v. Carlson, 39 Or. 19, 62 Pac. 1016, 1119.

Tamler & Polly, 19 Or. 528, 25 Pac. 71, 9 L. R. No demurrer to the pleading was inter

A. 853; State v. Foot You, 24 Or. 61, 32 l'ac. posed in the case at bar, and as the offense

1031, 33 Pac. 537; State v. Robinson, 32 Or. charged was a compound larceny, the in

43, 18 Pac. 337; State v. Fiester, 32 Or. 254, formation is sufficient to uphold the verdict

50 lac, 561; State v. Schuman, 36 Or. 16, 58

Pac. 0561. 17 L. R. A. 153, 78 Am. St. Rep. and judgment, which are based on simple larceny, where the worth of the property

751; State v. Sally, 41 Or. 360, 70 Pac. 396. taken is alleged and determined by the ver

As there was some evidence introduced at dict, thereby removing any doubt on that

the trial tending to establish the identity and subject (State v. Hanlon, 32 Or. 9.), 15 Pac.

value of the paper money alleged to have :3:53 ; State r. Savage, 30 Or. 191, 60 Pac. 610,

been stolen, and as the request for an in01 Pac: 1125); and no error was committed

struction to find a verdict of “not guilty" did in directing a finding as to such value.

not particularly specify the ground on which It is maintained by defendant's counsel

it was based, no error was committed in rethat no direct proof was offered tending to

fusing to charge the jury as desired, or in show that the property claimed to have been giving the instruction herein before set out stolen was “lawful money anil currency of

and assigned as error. the t'nited States," as alleged in the infor- 4. P. Southwick, having testified as a witmation, and that there was an entire failure ness for the state, was not permitted, on to establish the value of the bills asserted to cross-examination, to answer the following have been taken, and for these reasons the question: "And didn't you a majority of the testimony was insufficient to authorize a find- time 'bum' your meals off the free-lunch ing as to such value; and hence the court counters of the saloons?" The defendant's was at fault in denying the request to give counsel thereupon stated to the court that the instruction liereinbefore set out, and also they expected to prove, by the answer sought, erred in charging the jury as follows: I that the witness was a vagrant and a tramp; instruct you that government notes in the but, all testimony to that effect having been form of greenbacks, silver certificates, or rejected. an exception was reserved, and it golil notes, and national bank notes, are cur- is insisted that an error was thereby commitrent moneys of the t'nited States, and are ted. If Southwick had given an affirmative subject of larceny under our statutes"—to answer to the question asked him, or if the the giving of which an exception was saved. defendant's counsel had been permitted to It will be recalled that the testimony tended prove the truth of the declaration which they to show tlat the property alleged to have made to the court, the state of feeling existbeen unlawfully taken consisted of two $20 ing between the witness and the defendant and four $10 bills in greenbacks. These bills would not have been disclosed. The necessiwere not specifically identifier, nor was any ty of answering such it question as was properson called its a witness to prove the value : pounded to Southwick, who did not interpose thereof. If the court's attention had been a claim of privilege, is to be determined by particularly attracted to the failure of proof the trial court as a matter within its discre

tion, which will not be disturbed, except in with the crime of assault with a dangerous cases of an abuse thereof. State v. Bacon, 13 weapon, and, upon a plea of guilty to simple Or. 143, 9 Pac. 393, 57 Am, Rep. 8; State v. assault, was adjudged to pay a fine of $50; Chee Gong, 17 Or. 035, 21 Pac. 882; State v. and the state has also offered the testimony of Olds, 18 Or. 440, 22 Pac. 940; State v. Welch, the clerk of this court to the effect that Fred 33 Or. 33, 54 Pac. 213. We do not think Reyner, named in the judgment roll, is the there was any abuse of discretion in refusing identical and same person as F. K. Reyner, to permit the witness to answer the question the defendant in this case. I instruct you, asked or in rejecting the proof offered. gentlemen of the jury, that you can only con

The defendant's counsel, invoking the prin- sider this judgment roll for the purpose of ciple announced in the case of State v. Cody, determining the credit to be given to the 18 Or. 506, 23 Pac. 891, 24 Pac. 895, insist testimony of the defendant. You cannot conthat, when an information charges the com- sider this record as a circumstance from mission of a crime, which necessarily in- wbich you might Infer guilt of the defend'cludes a lesser offense, it is incumbent upon ant in this case, but only as a matter affectthe court, without any request therefor, to ing the credibility of F. K. Reyner as a witInstruct the jury that they have the right ness in his own behalf in this case upon the to find the accused guilty of the lesser crime, witness stand.” An exception having been If they entertain a reasonable doubt as to taken to this part of the charge, it is conhis guilt as to the .greater offense, and that, tended by the defendant's counsel that an no charge to that effect having been given, error was thereby committed. For the puran error was committed. In State v. Foot pose of determining the degree of credibility You, 24 Or. 61, 32 Pac. 1031, 33 Pac. 537, the to which a witness is entitled, the record of doctrine promulgated in the case relied upon a judgment may be received in evidence to was expressly overruled, and hence no error show that he has been convicted of a crime. was committed, as alleged.

B. & C. Comp. $ 852. We think no error was The court gave to the jury the following committed in giving this instruction. instructions: "The state has introduced in Exceptions were taken to other parts of evidence in this case the judgment roll in the the court's charge; but, believing the errors case of the state against Fred Reyner, assigned are unimportant, the Judgment 1 wherein the defendant therein was charged | afirmed

(29 Nev. 421)

accused.” Commenting upon a similar moSTATE v. DWYER. (No. 1,712.)

tion in the case of State v. McLane, 15 Ner. (Supreme Court of Nevada. Aug. 12, 1907.)

372, this court said: "On the whole, we think

the application in this case for a change of CRIMINAL LAW-VENUE-REFUSAL OF CHANGE -ABUSE OF DISCRETION.

venue was not materially stronger than that Evidence in a homicide case, deceased being in the case of Millain, 3 Nev. 433, where the man favorably and widely known in the order overruling the motion was affirmed by county and defendant a stranger, as to the very

this court. It is not shown in this case, any general and unqualified belief in the county in defendant's guilt and the bitter feeling against

more than in that, that the parties threatening him, and of the knowledge of the jurors of violence to the defendant were either nusuch feeling and the possession by many of them merous or influential; and we do not underof qualified opinions as to his guilt which would require evidence to remove, held to show an

stand that the mere prevalence of a belief abuse of discretion in refusing a change of ven- in the guilt of a prisoner, however widely ue, under Cr. Prac. Act (Laws 1861, p. 467, c. diffused, is a circumstance from which it 104) $ 306, authorizing removal on the ground that a fair and impartial trial cannot be had in

must be inferred that a jury would be inthe county where the indictment is pending.

timidated or overawed." Again, in the case [Ed. Note.-For cases in point, see Cent. Dig.

of State v. Gray, 19 Nev. 215, 8 Pac. 457, this vol. 14, Criminal Law, $ 213.]

court had the following to say in reference to

a motion for change of venue: "Defendant Appeal from District Court, Lander County. Patrick Dwyer was convicted of murder,

applied for a change of venue on the ground

of prejudice existing against him in the and appeals. Reversed, and change of venue

county where the indictment was pending and new trial ordered.

which would prevent him from having a fair Jas. F. Dennis, P. A. McCarran, and Wm. and impartial trial. The application was Woodburn, Sr., for appellant. R. C. Stod

.

based upon affidavits tending to establish the dard, Atty. Gen., and A. J. Maestretti, Dist. fact alleged, and resisted by counter affiAtty., for the State.

davits. It is unnecessary to consider the con

tents of the affidavits. The district court NORCROSS, J. Appellant was convicted in overruled the motion for the time being, until the Third judicial district court in and for it could be shown by an examination of a Lander county of the crime of murder in

sufficient number of jurors that a fair and the first degree and sentenced to be hanged. impartial jury could not be obtained. After From such judgment he appeals.

examining 81 persons a jury was impaneled. The principal question presented upon this

The statute authorizing a change of venue appeal is whether or not the court erred in criminal cases provides that, before grantin denying the defendant's various motions ing the order, the court shall be satisfied that for a change of venue. Section 306 of the the representations of the moving party are criminal practice act (Laws 1861, p. 467, c.

The question whether a fair and im104) provides: "A criminal action, prosecuted partial jury could be obtained depended largeby indictment, may be removed from the court ly upon the opinions of witnesses. Opinions in which it is pending, on the application of

differed widely, and the court adopted a very the defendant or state, on the ground that a satisfactory test to ascertain the fact. The fair and impartial trial cannot be had in the practice pursued was approved in State v. county where the indictment is pending.” In Millain, 3 Nev. 433, and by the Supreme Court the case of State v. Millain, 3 Nev. 432, this of California in People v. Plummer, 9 Cal. court said: "There are few cases that present 299, and in People v. Mahoney, 18 Cal. 181." themselves to appellate courts where it is The foregoing furnishes about all the light we more difficult to determine upon any settled may gather from the decisions of this court principles or rule of action than in these upon a question like that here presented. cases relating to a change of venue.

By all

Outside of the fact that every case where a it is admitted that there is a broad dis- change of venue is sought must come within cretionary power allowed the court of origi- certain broad principles, each case must be nal jurisdiction. But, whilst that court has determined upon its own particular facts. such discretion, it is still a judicial and not The defendant's motion for a change of an arbitrary, discretion. If that discretion is venue under the provisions of the statute used in an arbitrary and oppressive manner, was first made on September 26, 1906, after an appellate court is bound to correct the er- two days had been spent in examining juryror. But to distinguish between what is and men, and after 81 jurymen had been exanı. what is not an abuse of that discretion is of. ined upon their voir dire, with the result that ten a very nice and difficult question. There only 11 had been passed, 3 of whom were are two circumstances, the existence of either passed over defendant's challenge for cause. of which should entitle the defendant to a At this time none of the 8 peremptory chalchange of venue. The one is the impossibil- lenges allowed to each side had been exerity of obtaining an impartial jury. The other cised. The motion was based upon a lengthy is such a state of public excitement against affidavit of the defendant, affidavits of dethe defendant that even an impartial jury fendant's three attorneys, and the testimony would be likely to be intimidated and over- of witnesses taken before the court. Affiawed by public demonstrations against the davits and the testimony of witnesses in op

91 P.-20

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