State v. Lawrence

| Or. | Jan 6, 1891

Strahan, C. J.

Section 1742, Hill’s Code, defines the crime for which the pleader attempted to indict the defendant. That section provides: “If any person not being armed with a dangerous weapon, shall by force and violence, or by assault, or by putting in fear of force and violence or assault, rob, steal or take from the person of another any money or other property which may be the subject of larceny, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than five years.” It will be observed that this indictment fails to charge that the property in question was taken /rom the person of Geo. Lebo. The jury having convicted the defendant of the crime of larceny from the person, he was sentenced to the penitentiary for a crime not charged in the indictment.

The indictment is fatally defective in another particular* It is not charged that this crime was committed “by force and violence, or by putting in fear of force and violence or assault.” It is the violation of the sacredness of the person by any of the means enumerated in the statute, whereby one’s property is taken, which the law punishes, and not the mere fact that a larceny is committed. The pleader ought, therefore, to aver that the property was taken from the person by some of the means mentioned. The defendant may have used force and violence, or assaulted the prosecutor, or put him in fear of force and violence or assault, yet, if he did not rob, steal or take from the person the property in question by some one or more of the means enumerated, the crime is not made out. If the crime were properly charged, and any of the acts mentioned in the statute were committed at the time the property was taken, a jury would have no difficulty in reaching a correct conclusion. Counsel for appellant cite section 1765, Hill’s Code, which provides: “ If any person shall commit the crime of larceny by stealing from the person of another, such person shall,” etc. From this he argues that inasmuch as the taking from the person is not charged, that part of the verdict of the jury is to be rejected as surplusage and the cause remanded to the court below with directions to sentence the prisoner for the crime of petit larceny. But we are not satisfied that such disposition of the case would be proper. The grand jury were evidently of the opinion that a felony had been committed, and aimed to charge the defendant therewith. If the defendant has committed a felony, there is no legal reason why he should not be tried for that crime, if the court below and district attorney so elect.

The judgment will, therefore, bo reversed and the cause be remanded to the court below fo)f such further proceedings as may be according to law and the practice of that court.