11 Utah 283 | Utah | 1895
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and his counsel contend that the statute under which the proceedings which resulted in his conviction were had was repealed before the indictment was found.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 It will be noticed that goats and sheep were withdrawn from the operation of the act in relation to larceny.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 Htah 1888, under which the indictment in this case was found. It is insisted by counsel for the petitioner that said subdivision 3 was repealed by § 8, c. 11, Sess. Laws 1886, which section reads as follows:
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 ■jrender them irreconcilable upon any rule of statutory con-
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 the felonious-taking of any personal property. 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 theni 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,
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