81 P. 753 | Cal. Ct. App. | 1905
Respondent was indicted by the grand jury of Solano County for the crime of robbery and found guilty of grand larceny.
On the day fixed for pronouncing judgment, he made his motion in arrest of judgment upon the grounds: "That it appears upon the face of the indictment on which said defendant was tried and convicted, that the facts stated therein do not constitute the public offense of grand larceny or any other public offense. For the reason that said indictment does not charge that the property taken was not the property of the defendant, or was the property of any person other than the defendant."
The motion was granted, and thereupon this appeal was taken.
It is thus apparent that the sole question here is the sufficiency of said indictment to sustain a conviction of grand larceny.
The part of said indictment pertinent to this inquiry reads as follows: "The said William Cleary, . . . willfully, unlawfully and feloniously, did take from the person and possession of one Peter Cadloni seventy dollars in gold and silver coin of the United States of America, which said taking of said lawful money aforesaid, was then and there without the consent and will, and was then and there, against the will of said Peter Cadloni, and was then and there accomplished by means of force used upon and against the said Peter Cadloni, by said William Cleary."
"Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another," and unless it can be said that the indictment in this case charges that the property taken was owned by some other person than *52 the defendant, the action of the court below must be sustained.
In People v. Hanselman,
Counsel for appellant concedes that this is the rule, but contends that it being alleged that the property was taken from the possession of Cadloni, it follows that this must be taken as an averment of Cadloni's ownership.
In support of this contention section 1963 (subd. 11) of the Code of Civil Procedure is cited.
The presumption "That things which a person possesses are owned by him," if uncontradicted, is accepted asproof, but we are here dealing with a pleading, and "In no case can an indictment be aided by presumption." (People v. Terrill,
People v. Nelson,
People v. Price,
In People v. Hicks,
The language there used will bear the construction that the property taken was the personal property of Frederick Schwartz, and in his possession, and this construction being adopted, there was a sufficient averment of ownership in another.
This is pointedly shown by two cases in which People v. *53 Hicks was cited. (People v. Hanselman,
In the latter case it was contended that the offense was described in the language of the statute defining robbery, but the court held that this was not sufficient, and that adistinct averment of ownership was necessary. Now, robbery is the felonious taking of personal property from the possession
of another, and if the averment of possession carried an averment of ownership, then certainly nothing more could be requisite. And yet for forty years it has been the rule that in addition to this an averment of ownership is necessary. (People
v. Vice,
If it need only be stated that the property taken was in the possession of another, then in reason, as well as under the authorities, it need only be alleged that the taking was from the person of another. For it would thus appear that the taking was from one having possession. (People v. Shuler,
This construction would emasculate section
It would necessarily lead to a reductio ad absurdum, abhorred in law and logic.
The order is affirmed.
Chipman, P. J., and Buckles, J., concurred.