8 Nev. 262 | Nev. | 1873
By the Court,
Appellant, having been convicted of grand larceny, moved to arrest the judgment upon the ground that the indictment
The indictment charges “ that said defendants Joseph Oxford and James Berryman, on the thirtieth day of July, A. d. 1872, * * at the County of Lander in the State of Nevada, * * six hundred and ten pounds of silver-bearing ore, of the value of eight hundred dollars, of the property of the Manhattan Silver Mining Company of Nevada, a corporation duly organized and existing, * * did feloniously * * steal, take, and carry away. * * * ”
It is claimed that the property alleged to have been stolen savors of the realty, and that there is no sufficient statement of facts in the indictment showing it to be personal property. The rule that things savoring of the realty are not the subject of larceny is stated by Sir Matthew Hale as follows: “If a man cut and carry away corn at the same time it is trespass only, and not felony, because it is but one act; but if he cut it and lay it by and carry it away afterwards it is felony.” Emmerson v. Annison, 1 Mod. 89. The reasons given by Blackstone (4 vol. p. 232) for this distinction is that “Lands, .tenements and hereditaments (either corporeal or incorporeal) can not, in their nature, be taken and carried away. And of things, likewise, that adhere to the freehold, as corn, grass, trees and the like, or lead upon a house, no larceny could be committed by the rules of the common law; but the severance of them was, and in many things is still, merely a trespass which depended on a subtility in the legal notions of our ancestors. These things were parcel of the real estate, and therefore, while they continued so, could not by any possibility be the subject of theft, being absolutely fixed and immovable. And if they were severed by violence, so as to be changed into movables, and at the same time, by one and the same continued act, carried-off by the person who severed them, they could never be said to be taken from the proprietor, in this their newly acquired state of mobility (which is essential to the nature of larceny), being never, as such, in the actual or
The rule containing this subtle and unsatisfactory distinction is sustained by all the authorities. 2 Bishop on Or. L. Sections 779, 780, 781, 782, and authorities there cited. There is some conflict in the authorities as to what interval of time must elapse between the acts of severance and asportation. The doctrine seems now to be settled, as laid down in Bishop, that no particular space is necessary, only the two acts must be so separated by time as not to constitute one transaction.
There is no substantial reason why the thief who, with felonious intent, takes and carries away apples from a tree, lead pipe from a building, or quartz; rock containing precious metals from a mine, etc., etc., at one time, should not be punished the same as the thief who first severs the things from the freehold and afterwards goes back and carries them away. It is the criminal intention that constitutes the offence, and this intention is the only criterion by which to distinguish a larceny from a trespass. In our judgment the more sensible rule would be that as soon as the thing's which savor of realty are severed from the freehold, they become eo instante the personal property^? the owner, the felonious taking and carrying away of which would constitute larceny.
So far as the present case is concerned, it is unnecessary to depart from the beaten path of precedent which the authorites have (as we think without substantial reason) established. In The People v. Williams, 35 Cal. 673, cited and relied upon by appellant, the indictment was for taking
The court did not err in overruling appellant’s motion in arrest of judgment. Appellant asks a reversal of the case upon the ground that the court erred in admitting the statement of Joseph Oxford, made after the commission of the offense, to the effect that the ore in question was bought from one John Bone at the same time that the cabin in which Oxford and appellant lived, and in which the ore was found, was purchased. This testimony was irrelevant and should have been excluded. 1 Green, on Ev. Sec. 111; The State v. Ah Tom, ante 213. But it is evident that appellant was not prejudiced by its admission. In fact the record shows that during his preliminary examination Berry-man made substantially the same statement, which was properly admitted in evidence.
The judgment of the district court is affirmed.