19 Utah 486 | Utah | 1899
The defendant, William H. Woolsey, was convicted of grand larceny on the 2d day of December, 1898, and was sentenced to the penitentiary for a term of one year.
The defendant demurred to the indictment on two grounds: “1st. That the facts stated do not constitute a public offense. 2d. That it does not substantially conform to the requirements of section forty-seven hundred thirty-one and forty-seven hundred thirty-two, in this: that it does not allege a day certain on which the offense is alleged to have been committed.”
The demurrer was overruled by the court below. Before sentence a motion in arrest of judgment was made on the same grounds as the demurrer.
The action of the trial court in overruling the demurrer and refusing to arrest judgment was excepted to, and is assigned as error.
The defendant is accused, in the indictment, of grand larceny, alleged therein to have been committed as follows:
“The said William H. Woolsey did on or about the 15th day of June, 1896, at the county of Kane and the
The value of the steer alleged to have been stolen is not alleged in the indictment. By the provisions of. subdivision 3, of Sec. 4643, C. L. U. 1888, the stealing of a steer was grand larceny. This section continued to be in force until the Revised Statutes went into effect, which was on the 1st day of January, 1898. The provisions of Sec. 4359 of the Rev. Stat. are as follows: “Grand larceny is larceny committed in either of the following cases: 1. When the property taken is of the value exceeding fifty dollars. 2. When the property is taken from the person of another.”
It was conceded in the argument that no evidence was adduced at the trial on the question of the value of the steer.
The first ground of the demurrer and motion in arrest of judgment is based upon the foregoing facts.
Defendant’s counsel claim that Sec. 4643 of the Comp. Laws of 1888, was repealed by Sec. 4359 of the Revised Statutes, and that therefore the conviction of the defendant for grand larceny, in the absence of the allegation in the indictment, and proof a't the trial, that the steer alleged to have been stolen was worth over fifty dollars, is illegal.
This would be so if it were not for the provisions of Sec. 2485 of the Revised Statutes, which are as follows:
“No offense committed, and no penalty or forfeiture incurred under any statute hereby repealed and before the repeal takes effect, shall be affecte°d by the repeal, except
The punishment for the crime of grand larceny is not mitigated by any of the provisions of the Revised Statutes. It is clear that Sec. 4643 of the Comp. Laws is still in force in regard to all offenses of grand larceny committed before the Revised Statutes went into effect, and the penalties incurred by such commission can be enforced the same as though the Revised Statutes had no existence.
The indictment charges the offense to have been committed on or about the 15th day of June, 1896. The second ground of the demurrer is that a certain day should have been alleged.
The rule of the common law which required that the indictment should state definitely the day on which the offense charged was committed, has been modified by some decisions, and in many instances by statutes.
Sec. 4737 of the Rev. Stat. of this State provides that ‘£ The precise time at which the offense shall have been committed need not be stated in the information or indictment, but it may be alleged to have been committed at any time before the filing thereof, if an information; or, if an indictment, before the finding thereof, except where the time is a material ingredient in the offense. ’ ’
Under the same provision, by statute, in many of the States of the Union, it has been held that where time is not one of the constituent elements of the crime charged, it may be alleged in the indictment to have been committed on or about a day named therein. State v. Thompson, 10 Mont., 549; State v. Williams, 16 Neb., 658; Rawson v. State, 19 Conn., 292-294; People v. Aro, 6
While at common law the time of the offense must always be alleged, yet where time does not constitute an element of the offense, the' prosecution is not required to prove that it was committed on the day stated; but proof of its commission, at any .time before the indictment is found, and the statute of limitation has barred a prosecution, is sufficient. So that the requirement, at common law, that the indictment must definitely allege the time of the offense, is mere form. 1 Bish. Crim. Proc., Sec. 386, and notes.
Section 4742, Revised Statutes of this State provides that “No information or indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of a defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon the merits.”
In view of the provisions of the-Revised Statutes, neither the demurrer nor the motion in arrest of judgment is tenable.
The further objection is made for the first time in this court, by the defendant, that the judgment is erroneous because the record does not show that the defendant was present at the time the court overruled his demurrer to the indictment.
Section 4811, Rev. Stat., provides that, “If the prosecution is for a felony, the defendant must be personally present at the trial.”
While there is some conflict of authority upon the question, there is a great preponderance in favor of the propo
The judgment of the lower court is affirmed.