128 Ind. 160 | Ind. | 1891
The information charges, in one count, that “the appellant feloniously did steal, take and carry away one cutter bar of the value of ten dollars, and two hundred pounds of iron of the value of five cents per pound, of the personal property of James Gunnison, and one cutter bar of the value of ten dollars, and two hundred pounds of iron of-the value of five cents per pound, the personal property of James Parham.”
If the count of the information from which we have quoted is double, it is bad for duplicity. The rule is well settled that duplicity is fatal upon a motion to quash. Siebert v. State, 95 Ind. 471 (475); Stewart v. State, 111 Ind. 554 (556); Fahnestock v. State, 102 Ind. 156; State v. Weil, 89 Ind. 286 ; Knopf v. State, 84 Ind. 316.
Whether the pleading is double or not depends upon whether stealing the property of two different persons is prima facie one offence, or is two distinct offences. We do not here controvert the doctrine that there may be cases where the larceny of the property belonging to different persons may constitute a single offence, as, for instance, where it is all in one bundle or in one package, for it is unnecessary to do so, inasmuch as in such a case there is a single and indivisible act, and it may be a single crime. State v.
It is well known that every larcenous taking is a trespass against the owner. An essential element of the crime of larceny is trespass, although the trespass may be constructive and not actual. Assuming, as we must, that the element of trespass is essential to the crime of larceny, we must ascertain what the implication is where it is charged that there was a trespass against two or more persons. It seems clear to us that the implication is that the trespasses were separate and distinct. If Gunnison had sued the appellant for the trespass, and had alleged that the appellant carried away his, Gunnison’s, property and that of Parham also, we suppose it to be plain that Gunnison could not recover the value of Parham’s property, for the implication would be that there were distinct causes of action. If this is the implication, then the information is double. We can perceive no escape from this conclusion. We can not infer, for the sake of upholding a conviction of a crime, that what would
Resuming our consideration of the authorities, we quote from the case of Morton v. State, 1 Lea (Tenn.), 498, the following : "Every larceny includes a trespass to the person or property of the owner of the thing stolen. A larceny of the property of O’Brien was no trespass to the person or property of Corbitt, and vice versa.” In the case of State v. Thurston, 2 McMullan (S. C.), 382, it was held that taking cotton belonging to three persons constituted three distinct offences. The doctrine is carried much further — possibly too far — in Commonwealth v. Andrews, 2 Mass. 409, for it was there held that the offences were distinct, although there was a single
It is difficult to reconcile the doctrine of our later cases with that asserted in Clem v. State, supra, but it is not important that we should attempt to do so in this instance, nor is it necessary to determine which is the better doctrine, for, assuming that the doctrine of Clem v. State, supra, is sound, it in no wise impeaches our conclusion; for it is there held that the crime must be the product of one and the same act, and, conceding this, the information before us is bad.
In the case of State v. Elder, 65 Ind. 282, it was said: “When the same facts constitute two or more offences, wherein the lesser offence is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution to a final judgment will not be a bar to the second, although the offences were both committed at the same time and by the same act.” Much to the same effect is the reasoning in State v. Hattabough, 66 Ind. 223, and Siebert v. State, supra. See, also, Davidson v. State, 99 Ind. 366.
~We know that there are decisions hostile to the conclusion we here assert, but we are satisfied that our conclusion is right on principle, and sustained by the decided weight of authority.
It may not be amiss to say that we intimate no opinion as to what the rule should be upon a motion in arrest, for here the attack was made upon the information promptly, and the State had ample time and opportunity to cure the error.
Judgment reversed.