State v. Kelliher, 50 P. 532

State v. Kelliher

50 P. 532 | Or. | 1897

Mr. Justice Bean

delivered the opinion.

The defendant was convicted of the crime of larceny, and sentenced to the penitentiary for the .term, of ten years. The indictment under which the conviction was had charged him with having feloniously stolen divers and sundry articles of ■merchandise, the items thereof being specifically ■described, and their value alleged; but although the ¡several values, as stated, aggregate more than $35, it contained no allegation to that effect. The jury returned a verdict of guilty as charged in the indictment. There is no bill of exceptions in the record, and the only question for consideration is *243■whether the indictment and verdict will support the judgment.

1. It is first contended that the indictment is insufficient because it does not contain an allegation of the aggregate value of the property alleged to have been stolen. But this was unnecessary. In an indictment for the larceny of several articles, it is the usual and manifestly the better practice to add the allegation of value to each specific article, or, if there are several articles of a kind, what is practically the same thing, to aver their number, each of a given value, because in such case the state is not bound to prove the larceny of all the articles as laid, in order to secure a conviction, as would be the case under an indictment alleging simply their aggregate value: 2 Bishop’s New Criminal Procedure, § 714; Commonwealth v. Lavery, 101 Mass. 207. It is quite true that under a statute like ours, where the punishment is greater or less according as the thing stolen is above or below a certain value, the indictment should show to which class the case belongs: 1 Bishop’s New Criminal Procedure, § 4886. But this requirement is satisfied when an allegation of value is added to each specific article, for it is but a mere mathematical calculation to determine their aggregate value.

2. It is next claimed that the verdict is insufficient because it does not state the value of the property stolen. But it was early held in this state that, on an indictment for stealing property of a .specified value, it was not necessary for the jury to *244assess the value in their verdict: Howell v. State, 1 Or. 242. And this is in harmony with the great weight of authority. A general verdict of guilty affirms the truth of all the material allegations of the indictment, including that of value, so far as the same is material; and, therefore, on a charge of stealing several articles of specified values, such a verdict is a finding that the defendant stole all of them, and that their several values were as averred, or at least that their aggregate value is sufficient to constitute the crime charged: 2 Bishop’s New Criminal Procedure, § 764; State v. White, 25 Wis. 359; Schoonover v. State, 17 Ohio St. 294; Cook v. State, 49 Miss. 8; Smith v. State, 60 Ga. 431; State v. Soule, 20 Me. 19; People v. Whitely, 64 Cal. 211 (27 Pac. 1104); People v. Manners, 70 Cal. 428 (11 Pac. 643); People v. Perez, 87 Cal. 122 (25 Pac. 262); Commonwealth v. Butler, 144 Pa. St. 568 (24 Atl. 910). A different rule seems to obtain in Iowa and Illinois, as a result, probably, of an early decision of the courts of the" latter state: Highland v. People, 1 Scam. 392; Sawyer v. People, 3 Gilman, 53; Collins v. People, 39 Ill. 233; Thompson v. People, 125 Ill. 256 (17 N. E. 749). But these decisions are not regarded as authority elsewhere, and are contrary to the rule announced in Howell v. State, 1 Or. 242. It follows that the judgment must be affirmed, and it is so ordered.

Affirmed.