2

gregate amount and value, need not state their number or denomination. But to convict on such an indictment, the testimony must show the theft of all the articles alleged to have been stolen. The better practice therefore, is to allege the value of each article stolen, and not the aggregate value.❜ It is not ground of demurrer that the value is stated as of a specified number of dollars, omitting the words "lawful money of the United States." The defendant may be found guilty even if the value found by the jury is less than that stated in the indictment. The value merely fixes the punishment to be inflicted. In an indictment for the larceny of a bank check, it is a sufficient allegation of value to say that it was "of the value of $20.97." An indictment which charges, in a single count, that the defendant, with the intent to steal, broke into and entered a building in which seed cotton was at the time kept, and stole therefrom sixty pounds, of the value of $3, will support a conviction for petit larceny.' But an indictment for the larceny of "a receipt for one bale of cotton ** of the value of," etc., is bad. The allegation of value may apply either to the receipt or the cotton; it is therefore uncertain whether any value has been alleged." So, where an indictment for stealing towels and handkerchiefs did not. allege that each of the towels or each of the handkerchiefs was of some value, but only that six of the towels and twelve handkerchiefs were of some value, it was held that there must be a new trial, it being consistent with the allegation that the only

1 Com. v. Stebbbins, 8 Gray, 492; Commonwealth v. Grimes, 10 Gray 470; 71 Am. Dec. 666.

Thompson v. State, 43 Tex. 268.

* Meyer v. State, 4 Tex App. 121; Doyle v. State, Id. 253.

4 People v. Winkler, 9 Cal. 234.

5 State v. Hessian, 58 Iowa 68.

• State v. Pierson, 59 Iowa 271 In an indictment under 2 N. Y. Rev. Stat. 679, 63, for stealing a draft, the allegation as to the value need only be that it was of $25, or of a value specified greater than that sum; the elements that make up the value need not be stated. The provision of § 66, that the sum collectible on the draft shall be deemed its value, makes no part of the description, but simply furnishes a mode of proving the value.— Phelps v. People, 72 N. Y. 334.

Borum v. State, 66 Ala. 468.

8 Williams v. State, 44 Ala. 396.

* *

towels and handkerchiefs which were deemed of any value were those not produced or proved to have been stolen.' And an information for the stealing of "ninety-three railroad passenger tickets of the aggregate value of $120, ** a more particular description of which is unknown," does not state facts sufficient to constitute the crime of larceny. The separate value of the tickets should be stated so as to enable the degree of the crime to be determined in case a less number of tickets were taken, and should show that they were stamped, dated and signed, as otherwise they would be worthless, and not the subject of larceny.'

4

§ 111. Felonious intent; necessity of the averment.As we have already seen (supra § 18), to constitute larceny there must be a specific intent to deprive the owner of the value of the property taken; therefore, to charge the offense the indictment or information must allege this intent. An indictment failing to allege a fraudulent taking is fatally defective. In Alabama, under Code, § 4360, making it larceny to enter on another's land without his consent, and to cut and carry away timber "with the intention of converting it to his own use," the indictment must allege the intent. In Georgia, an indictment for larceny, consisting in the appropriation to one's own use of money intrusted to him (under Code 1833, § 36, Irwin's Code, § 4358), must show not merely a use of the trust money by defendant, but facts from which it may appear that such use was fraudulent. In Ohio, an indictment for stealing bank bills and promissory notes must charge that the defendant knew that the papers stolen were bank bills and

1 Com. v. Lavery, 101 Mass. 207.

McCarty v. State, 1 Wash. St. 377.

3 Tallant v. State, 14 Tex. App. 234.

4 McPherson v. State, 20 Tex App. 194; Spain v. State, 19 Tex. App. 469. 5 McCord v. State, 79 Ala. 269. An indictment under Rev. Code, § 3695, which alleges that the defendant broke into and entered a building, and feloniously took and carried away personal property of the value of more than one hundred dollars, without an averment that the breaking and entering were with intent to steal or to commit a felony, charges grand larceny, and not felony.-Bell v. State, 48 Ala. 684. But see Fisher v. State, 46 Ala. 717.

• Snell v. State, 50 Ga. 219. Compare Hoyt v.

State, Id. 313.

notes.' In Texas, the indictment must allege that the property was taken with intent to deprive the owner of it, and to appropriate it to the use of the defendant." An indictment which fails to charge that the property was taken "with intent to deprive the owner of the value of the same," is defective. It is not enough to aver that the taking "was with the fraudulent intent to appropriate the same to the use and benefit of him, the said," etc."

§ 112. Its sufficiency.-In Alabama, the words "did attempt to feloniously take and carry away," charge an intent to commit larceny and an effort to carry out the intent, and are sufficient under Code, § 4366, providing that forms may be used as near similar as the nature of the case and rules prescribed in this chapter will permit," and § 4368, providing that the indictment must state the facts constituting the offense in ordinary and concise language, in such manner as to enable a person of common understanding to know what is intended.''' In Georgia, an averment that the defendant did, "unlawfully and with force and arms," "privately take and carry away, with intent then and there to steal the same," is sufficient, though the taking is not in terms declared to be wrongful and fraudulent. In Iowa, an averment that defendant "took, stole, and carried away," is sufficient to show the animus with which the act was done; and it is unnecessary to aver that the taking was felonious and with intent to convert to defendant's own use.' In Texas, the taking must be directly alleged to have been fraudulent; that it "was with the fraudulent intent to appropriate the same to the use and benefit of him, the said M.," etc., will not supply the omission. But the indictment need not, in charging the

1 Rich v. State, 8 Ohio 111; Gatewood v. State, 4 Id. 386.

* State v. Sherlock, 26 Tex. 106; Ridgeway v. State, 41 Id 231.

8 Ridgeway v. State, 41 Tex. 231; Peralto v. State, 17 Tex. App. 578; Robinson v. State, Id. 589.

Muldrew v. State, 12 Tex. App. 617.

5 Jackson v. State, 8 So. Rep. 773.

6 Yates v. State, 67 Ga. 770.

'State v. Griffin, 79 Iowa 568.

8

• Muldrew v. State, 12 Tex. App. 617; Chance v. State, 27 Tex. App. 441,

intent to defraud and the intent to appropriate, aver time and place separately to each intent. The copulative conjunction suffices without reiterating "then and there." Where the indictment alleges defendant's name correctly in the first instance, but, in charging the intent, incorrectly states either his christian name or surname, the variance does not render the indictment invalid."

"

§ 113. Use of the word "feloniously." In many jurisdictions an indictment for larceny, in charging the intent to steal, take and carry away, must use the word "feloniously or it will be fatally defective." An indictment not conforming to this rule is bad on motion to quash, and, though it might have been cured by amendment, the appellate court will not treat it as if the amendment had been made. In New Brunswick, the omission is not even amendable under 32 and 33 Vict., ch. 29, § 32. The omission of this word reduces the offense to a trespass. In California, however, the omission is not fatal

46

6

1 Harris v. State, 2 Tex. App. 102.

Wampler v. State, 28 Tex. App. 352. An indictment charged that one P. had possession of a watch, the property of the defendant, by virtue of his lien for repairs, and that the defendant fraudulently took it without the consent of P., to deprive him of the value of said repairs, by depriving him of the said watch, and in order to appropriate it (the value of the repairs) to the defendant's use. Held, sufficient to charge a theft by the owner of his own property.-State v. Stephens, 32 Tex. 155. An indictment charging a single defendant with larceny of a mare and colt, and concluding, and to appropriate the same to their own use and benefit.” Held, not to be fatally defective.-Snow v. State, 6 Tex. App 284. Pen Code, art 741, provides that any person who carries away any filed paper from any clerk's office, with intent to destroy, suppress, alter or conceal, or in anywise dispose of the same, "so as to prevent the lawful use of such filed paper," shall be deemed guilty of theft. Held, that where, on a trial for taking a deed from a clerk's office, there is evidence that defendant previously forged the deed, an indictment charging simply that he took it with intent to destroy, etc., 'so as to prevent the lawful use" thereof, will warrant a conviction only upon the theory that he took it to prevent its use to prove title, and not upon the theory that he took it to prevent its use as an evidence of forgery.-Witte v. State, 21 Tex. App. 88.

66

3 Scudder v. State, 62 Ind. 13; Gregg v. State, 64 Ind. 223; Commonwealth v. Pratt, 132 Mass. 246; State v. Weldon, 70 Mo. 572; Barker v. Com. 2 Va. Cas. 122.

4 Sovine v. State, 85 Ind. 576.

5 Queen v. Morrison, 2 New Bruns. 682.

Sovine v. State, 85 Ind. 576.

unless the objection was urged in the court below.' In Texas the indictment need not allege that the taking was felonious; the word "fraudulently" is equivalent to "feloniously;"' and the words "did feloniously steal," sufficiently allege that the taking was "fraudulent."" But the words "unlawful" and "felonious" will not supply the place of "fraudulent," according to later decisions in that State."

CHAPTER XV.

JOINDER OF OFFENSES AND COUNTS.

§ 114. Charging two or more offenses, generally. 115. Charging larceny and receiving stolen goods.

116. Charging larceny of several articles belonging to one owner. 117. Charging larceny of articles belonging to different owners. 118. Joinder of defendants.

119. Election between counts.

§ 114. Charging two or more offenses, generally.-Two offenses committed by the same person may be included in the same indictment, in different counts, where they are of the same general nature, and belong to the same family of crimes, and where the mode of trial and nature of the punishment are also the same, although they may be punished with different degrees of severity. Thus, larceny from the person and obtaining money under false pretenses belong to "the same family of crimes," and may be joined." So may larceny from a dwelling in the night-time, and the same larceny in the daytime; and the severing of certain produce from the soil of the

1 People v. Lopez, 27 Pac. Rep. 427.

2 Austin v. State, 42 Tex. 345.

3 Musquez v. State, 41 Tex. 226; Pittman v. State, 14 Tex. App 576. Contra, Ware v. State, 19 Tex. App. 13.

4 Sloan v. State, 18 Tex. App. 225; Ortis v. State, Id. 282.

Johnson v. State, 29 Ala. 62; 65 Am. Dec. 383.

* State v Elsham, 70 Iowa 531.