(50 Or. 224)

STATE v. REYNER. (Supreme Court of Oregon. July 30, 1907.) 1. INDICTMENT AND INFORMATION-OBJECTION AT TRIAL--SUFFICIENCY OF FACTS.

By express provision of B. & C. Comp. § 1365, objection to an indictment that the facts stated do not constitute a crime may be taken at the trial, under a plea of not guilty.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 633, 634.]

2. LARCENY-FROM THE PERSON.

Where defendant proposed to F. an exchange of vests, and, on F. removing his vest and handing it to defendant, defendant turning his back to F. took from the vest and retained a roll of bills, and then handed the vest back to F., the stealing was larceny from the person, within B. & C. Comp. § 1800, prohibiting such thefts, and prescribing the measure of punishment therefor, provided the taking was without F.'s knowledge or consent, or so sudden as to preclude resistance before asportation. 3. SAME-NATURE-COMPOUND CRIMES.

The crimes of larceny from a store (B. & C. Comp. § 1799) and larceny from the person (section 1800) are compound larcenies, consisting of simple larceny (section 1798), aggravated by the circumstance of taking the property from a store or the person of another, in which the value of the property is not an ingredient of the offense, as in case of simple larceny. 4. SAME-STATING TWO OFFENSES-WAIVER OF OBJECTION.

Objection that an indictment contravenes B. & C. Comp. § 1308, requiring the indictment to charge but one offense, and in one form only, which section 1357, subd. 3, makes ground for demurrer, and section 1365 provides can be raised only by demurrer, not having been so raised, is waived.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 635.] 5. SAME-SUFFICIENCY TO SUSTAIN CONVIC

TION.

An information charging larceny from a store, a compound larceny, and also alleging the value of the property, not being demurred to as charging two offenses, will sustain a verdict and judgment based on a simple larceny; the verdict determining the value of the property taken.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 648.] 6. CRIMINAL LAW-APPEAL-SUFFICIENCY OF EVIDENCE-WAIVER OF OBJECTION.

There being some evidence on the trial to establish the identity and value of the money alleged to have been stolen, objection to the sufficiency of the proof thereon is waived; it not having been made other than by a request for an instruction to find a verdict of not guilty, not particularly specifying the ground on which it was based.

7. SAME-DISCRETION OF TRIAL COURT-QUESTIONS AFFECTING CREDIBILITY OF WITNESSES.

The necessity of answering the question asked on cross-examination of a witness, whether he did not "bum" his meals off free-lunch counters, is a matter within the discretion of the trial court, not to be interfered with, in the absence of abuse of its discretion.

8. SAME-INSTRUCTIONS-NECESSITY OF RE

QUEST.

Where an information charges an offense which necessarily includes a lesser offense, it is not necessary that the court, without a request

therefor, instruct that the jury may find defendant guilty of the lesser crime, if they entertain a reasonable doubt as to his guilt as to the greater offense.

9. SAME-CREDIBILITY OF WITNESS-EVIDENCE -INSTRUCTIONS.

Under B. & C. Comp. § 852, providing that a witness may be impeached by the record of the judgment of his conviction of a crime, it is proper to instruct that the judgment of conviction of defendant of assault may be considered for the purpose of determining the credit to be given his testimony.

Appeal from Circuit Court, Union County; T. H. Crawford, Judge.

F. K. Reyner was convicted of larceny, and appeals. Affirmed.

C. H. Finn, for appellant. A. M. Crawford, Atty. Gen., for the State.

MOORE, J. The defendant, F. K. Reyner, was convicted of the crime of larceny and sentenced to imprisonment in the penitentiary for the term of three years, from which judgment he appeals.

His counsel contend that the information does not state facts sufficient to constitute a crime, and that the evidence produced at the trial was insufficient to warrant a conviction, and hence the court erred in denying their request to instruct the jury, as follows: "I charge you that, under the testimony, you must find the defendant not guilty." The information, omitting the title, the contra formam statuti clause, the signature of the prosecuting officer, the names of the witnesses, and other indorsements, is as follows: "F. K. Reyner, the above-named defendant, is accused by the district attorney for the Tenth judicial district of the state of Oregon, in this information, of the crime of larceny in a building, committed as follows: The said F. K. Reyner did, in the county of Union, and state of Oregon, on the 15th day of November, 1906, wrongfully, unlawfully, and feloniously take, steal, and carry away in a certain store building, to wit, the Owl Saloon, a certain sum of money, to wit, the sum of $80, lawful money and currency of the United States, the denominations thereof to the district attorney unknown, said money being then and there the personal property of one Louie Fagin, and of the value of $80." No demurrer to the formal accusation was interposed; but, a plea of not guilty having been entered, the defendant's counsel objected and excepted to the introduction of any incriminating testimony against their client. Such evidence, though controverted, tended to show that, at the time stated in the information, the defendant was temporarily employed as a bartender in a saloon at La Grande; that the prosecuting witness, Louie Fagin, visited such resort, having in his vest pocket a roll of bills, whereupon the defendant proposed an exchange of vests with him; that Fagin removed his vest and handed it to the de

fendant, who, turning his back to such witness, took from the garment and retained the roll of bills, and thereupon handed the vest back to the owner. Fagin, as a witness for the state, in describing the money alleged to have been taken from him, testified that the night preceding his loss he left with one W. C. Hesse, at La Grande, for safe-keeping, "two $20 pieces in paper, four $10 bills, and one $10 in gold," and the next morning received the same, placing the paper money in his vest pocket and the gold in a purse. which he carried in his trousers pocket. The testimony of this witness is corroborated by that of Hesse as to the denomination and kind of money left with and given back by him. II. C. Cotner, the proprietor of the saloon where the defendant was employed. testified that, upon returning to his place of business, after a short absence, he found Fagin censuring the defendant for taking from him a package of paper money, saying: "This foreigner was accusing this man Reyner, over there, that he had taken a roll of greenbacks from him, his money, and he pulled open his coat that way, and said: 'IIe took it out of there.' Of course, he talked broken, but he made me understand there were $85 in it in greenbacks, paper money, and he says, "There is two $20 greenbacks, bills,' and he made me understand the balance of it was $5 and $10 bills." W. W. Crawford testified that he was in Cotner's saloon, November 15, 1906, and saw Fagin take "from his pocket what looked like greenback bills, and put them back in his coat pocket." The foregoing is the only testimony tending in any manner to identify the kind of money alleged to have been taken, or to establish its value, and, based on such evidence, the court said to the jury: "When you retire, gentlemen, you will select one of your number as foreman, who will sign whatever verdict you agree upon. If you are satisfied from the evidence in this case beyond a reasonable doubt of the guilt of the defendant, as I have indicated to you, you will sign and return this verdict: 'We, the jury in the above-entitled criminal action, find the defendant, F. K. Reyner, guilty of larceny, and the value of the property stolen $filling in the number of dollars, the value of the property stolen, and sign it above the word 'Foreman.'" An exception to this part of the charge was reserved by the defendant's counsel. Pursuant to Pursuant to the direction, however, the jury inserted in the verdict the following: "80.00."

The information herein before set out is evidently based on an alleged violation of section 1799, B. & C. Comp., which, so far as involved herein, is as follows: "If any person shall commit the crime of larceny in any dwelling house, banking house, office, store, shop, or warehouse

and commit

the crime of larceny therein, such person, upon conviction thereof, shall be punished," etc.

As this section is entitled "Larceny in House, Boat, or Public Building," it is argued that the crime of larceny in a building is not classified as a special offense under our statute, unless such structure is used by the public, and the defect in the information was not remedied by the averment "in a certain store building," for the idea intended to be expressed by the use of that phrase is to charge the commission of an offense in a building, rather than in a store.

The failure of an information to state facts sufficient to constitute a crime may be taken advantage of at the trial, as was done in the case at bar, under plea of not guilty (B. & C. Comp. § 1365), thereby making an examination of the charging part of the formal accusation necessary. Before considering such question, however, attention is called to the testimony, which, it will be remembered, tended to show that the money alleged to have been stolen was taken by the defendant from a vest which was delivered to him by Fagin, the owner of the property. If it be assumed that the money was abstracted from the garment under the circumstances adverted to, the stealing was larceny from the person, provided the taking was without Fagin's knowledge or consent, or so suddenly as to preclude resistance before asportation. Rapalje, Larceny, § 16; McClain, Crim. Law, $575; Commonwealth v. Lester, 129 Mass. 101. Our statute, prohibiting such thefts and prescribing the measure of punishment therefor, is as follows: "If any person shall commit the crime of larceny by stealing from the person of another, such person shall, upon conviction thereof, be punished," etc. B. & C. Comp. § 1800. The conviction herein was undoubtedly based on a violation of Id. § 1798, as amended (Laws 1905, p. 83), which, so far as considered material in the case at bar, is as follows: "If any person shall steal any goods or chattels, or any government note, bank note, * which is

the property of another, such person shall be deemed guilty of larceny, and upon conviction thereof, if the property stolen shall exceed in value $35, shall be punished by imprisonment in the penitentiary not less than one nor more than ten years; but if the property stolen shall not exceed the value of $35, such person, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than one year, or by fine not less than twenty-five nor more than one hundred dollars." An examination of the provisions of the statute relating to stealing from any dwelling house, etc., or from the person of another, will show that the commission of such crimes. is a compound larceny, consisting of simple larceny, aggravated by the circumstance of taking personal property of the class designated from a building in which it has been placed for safety, or from the person of another, who is awake and has the goods, chat

tels, or choses in action under his immediate observation and protection (State v. Patterson, 98 Mo. 283, 11 S. W. 728), in which cases the value of the property taken is not an ingredient of the offense. Larceny in a dwelling house or from the person of another is therefore a crime of greater magnitude than simple larceny, and, either of the former being a crime consisting of degrees, the larger offense necessarily includes the smaller.

The information stated the value of the property taken, but such averment was unnecessary, and, if it be assumed that the designation of "a certain store building" was a sufficient compliance with the requirement of the statute to make the offense larceny in a house of the specified class, the accusation might have been construed as stating facts constituting the commission of two crimes. Notwithstanding it is enacted that a written accusation must charge but one crime, and in one form only (B. & C. Comp. § 1308), and a failure to comply therewith renders the pleading demurrable (Id. § 1357, subd. 3), if the information is not thus challenged on account of its double aspect, the defect is waived. Id. § 1305; State v. Lee, 33 Or. 506, 56 Pac. 415; State v. Carlson, 39 Or. 19, 62 Pac. 1016, 1119.

No demurrer to the pleading was interposed in the case at bar, and as the offense charged was a compound larceny, the information is sufficient to uphold the verdict and judgment, which are based on simple larceny, where the worth of the property taken is alleged and determined by the ver dict, thereby removing any doubt on that subject (State v. Hanlon, 32 Or. 95, 48 Pac. 353; State v. Savage, 36 Or. 191, 60 Pac. 610, 61 Pac. 1125); and no error was committed in directing a finding as to such value.

It is maintained by defendant's counsel that no direct proof was offered tending to show that the property claimed to have been stolen was "lawful money and currency of the United States," as alleged in the information, and that there was an entire failure to establish the value of the bills asserted to have been taken, and for these reasons the testimony was insufficient to authorize a finding as to such value; and hence the court was at fault in denying the request to give the instruction hereinbefore set out, and also erred in charging the jury as follows: "I instruct you that government notes in the form of greenbacks, silver certificates, or gold notes, and national bank notes, are current moneys of the United States. and are subject of larceny under our statutes"-to the giving of which an exception was saved. It will be recalled that the testimony tended to show that the property alleged to have been unlawfully taken consisted of two $20 and four $10 bills in greenbacks. These bills were not specifically identified, nor was any person called as a witness to prove the value thereof. If the court's attention had been particularly attracted to the failure of proof

in the respect indicated, it is quite probable that, notwithstanding both parties had rested, the cause would have been opened so that evidence of the kind and value of the bills might have been supplied. This court was established to correct, after careful deliberation, the errors alleged to have been committed in the hurry of a trial by a circuit court; but, unless the latter tribunal has had an opportunity to pass upon the question that is brought to this court for examination, the consideration thereof would not be a review, as contemplated by the rules of law, but the contemplation of an independent inquiry, which, if sanctioned, would permit a party to an appeal to try a cause upon an entirely different theory from that pursued in the court below. To obviate such a system of procedure, a party who seeks to review the

action of a trial court on account of a lack of evidence, of which he complains, is required particularly to point out to it the legal principle for the maintenance of which he contends, and, if he fails to do so at the proper time, any error, unless there is a total failure of proof, is necessarily waived. State v. Tamler & Polly, 19 Or. 528, 25 Pac. 71, 9 L. R. A. 853; State v. Foot You, 24 Or. 61, 32 Pac. 1031, 33 Pac. 537; State v. Robinson, 32 Or. 43, 48 Pac. 357; State v. Fiester. 32 Or. 254, 50 Pac. 561; State v. Schuman, 36 Or. 16, 58 Pac. 661, 47 L. R. A. 153, 78 Am. St. Rep. 754; State v. Sally, 41 Or. 366, 70 Pac. 396. As there was some evidence introduced at the trial tending to establish the identity and value of the paper money alleged to have been stolen, and as the request for an instruction to find a verdict of "not guilty" did not particularly specify the ground on which it was based, no error was committed in re

fusing to charge the jury as desired, or in giving the instruction hereinbefore set out and assigned as error.

A. P. Southwick, having testified as a witness for the state, was not permitted, on cross-examination, to answer the following question: "And didn't you a majority of the time bum' your meals off the free-lunch counters of the saloons?" The defendant's counsel thereupon stated to the court that they expected to prove, by the answer sought. that the witness was a vagrant and a tramp; but, all testimony to that effect having been rejected, an exception was reserved, and it is insisted that an error was thereby committed. If Southwick had given an affirmative answer to the question asked him, or if the defendant's counsel had been permitted to prove the truth of the declaration which they made to the court, the state of feeling existing between the witness and the defendant would not have been disclosed. The necessity of answering such a question as was propounded to Southwick, who did not interpose a claim of privilege, is to be determined by the trial court as a matter within its discre

tion, which will not be disturbed, except in cases of an abuse thereof. State v. Bacon, 13 Or. 143, 9 Pac. 393, 57 Am. Rep. 8; State v. Chee Gong, 17 Or. 635, 21 Pac. 882; State v. Olds, 18 Or. 440, 22 Pac. 940; State v. Welch, 33 Or. 33, 54 Pac. 213. We do not think there was any abuse of discretion in refusing to permit the witness to answer the question asked or in rejecting the proof offered.

The defendant's counsel, invoking the principle announced in the case of State v. Cody, 18 Or. 506, 23 Pac. 891, 24 Pac. 895, insist that, when an information charges the commission of a crime, which necessarily in'cludes a lesser offense, it is incumbent upon the court, without any request therefor, to Instruct the jury that they have the right to find the accused guilty of the lesser crime, If they entertain a reasonable doubt as to his guilt as to the greater offense, and that, no charge to that effect having been given, an error was committed. In State v. Foot You, 24 Or. 61, 32 Pac. 1031, 33 Pac. 537, the doctrine promulgated in the case relied upon was expressly overruled, and hence no error was committed, as alleged.

The court gave to the jury the following instructions: "The state has introduced in evidence in this case the judgment roll in the

of the state against Fred Reyner, wherein the defendant therein was charged

with the crime of assault with a dangerous weapon, and, upon a plea of guilty to simple assault, was adjudged to pay a fine of $50; and the state has also offered the testimony of the clerk of this court to the effect that Fred Reyner, named in the judgment roll, is the identical and same person as F. K. Reyner, the defendant in this case. I instruct you, gentlemen of the jury, that you can only consider this judgment roll for the purpose of determining the credit to be given to the testimony of the defendant. You cannot consider this record as a circumstance from which you might infer guilt of the defendant in this case, but only as a matter affecting the credibility of F. K. Reyner as a witness in his own behalf in this case upon the witness stand." An exception having been taken to this part of the charge, it is contended by the defendant's counsel that an error was thereby committed. For the purpose of determining the degree of credibility to which a witness is entitled, the record of a judgment may be received in evidence to show that he has been convicted of a crime. B. & C. Comp. § 852. We think no error was committed in giving this instruction.

Exceptions were taken to other parts of the court's charge; but, believing the errors assigned are unimportant, the judgment is affirmed.

(20 Nev. 421)

STATE v. DWYER. (No. 1,712.) (Supreme Court of Nevada. Aug. 12, 1907.) CRIMINAL LAW-VENUE-REFUSAL OF CHANGE -ABUSE OF DISCRETION.

Evidence in a homicide case, deceased being man favorably and widely known in the county and defendant a stranger, as to the very general and unqualified belief in the county in defendant's guilt and the bitter feeling against him, and of the knowledge of the jurors of such feeling and the possession by many of them of qualified opinions as to his guilt which would require evidence to remove, held to show an abuse of discretion in refusing a change of venue, under Cr. Prac. Act (Laws 1861, p. 467, c. 104) § 306, authorizing removal on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending. [Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 243.]

Appeal from District Court, Lander County. Patrick Dwyer was convicted of murder, and appeals. Reversed, and change of venue and new trial ordered.

Jas. F. Dennis, P. A. McCarran, and Wm. Woodburn, Sr., for appellant. R. C. Stoddard, Atty. Gen., and A. J. Maestretti, Dist. Atty., for the State.

NORCROSS, J. Appellant was convicted in the Third judicial district court in and for Lander county of the crime of murder in the first degree and sentenced to be hanged. From such judgment he appeals.

The principal question presented upon this appeal is whether or not the court erred in denying the defendant's various motions for a change of venue. Section 306 of the criminal practice act (Laws 1861, p. 467, c. 104) provides: "A criminal action, prosecuted by indictment, may be removed from the court in which it is pending, on the application of the defendant or state, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending." In the case of State v. Millain, 3 Nev. 432, this court said: "There are few cases that present themselves to appellate courts where it is more difficult to determine upon any settled principles or rule of action than in these cases relating to a change of venue. By all it is admitted that there is a broad discretionary power allowed the court of original jurisdiction. But, whilst that court has such discretion, it is still a judicial and not an arbitrary, discretion. If that discretion is used in an arbitrary and oppressive manner, an appellate court is bound to correct the error. But to distinguish between what is and what is not an abuse of that discretion is often a very nice and difficult question. There are two circumstances, the existence of either of which should entitle the defendant to a change of venue. The one is the impossibility of obtaining an impartial jury. The other is such a state of public excitement against the defendant that even an impartial jury would be likely to be intimidated and overawed by public demonstrations against the 91 P.-20

accused." Commenting upon a similar motion in the case of State v. McLane, 15 Ner. 372, this court said: "On the whole, we think the application in this case for a change of venue was not materially stronger than that in the case of Millain, 3 Nev. 433, where the order overruling the motion was affirmed by this court. It is not shown in this case, any more than in that, that the parties threatening violence to the defendant were either numerous or influential; and we do not understand that the mere prevalence of a belief in the guilt of a prisoner, however widely diffused, is a circumstance from which it must be inferred that a jury would be intimidated or overawed." Again, in the case of State v. Gray, 19 Nev. 215, 8 Pac. 457, this court had the following to say in reference to a motion for change of venue: "Defendant applied for a change of venue on the ground of prejudice existing against him in the county where the indictment was pending which would prevent him from having a fair and impartial trial. The application was based upon affidavits tending to establish the fact alleged, and resisted by counter affidavits. It is unnecessary to consider the contents of the affidavits. The district court overruled the motion for the time being, until it could be shown by an examination of a sufficient number of jurors that a fair and impartial jury could not be obtained. After examining 81 persons a jury was impaneled. The statute authorizing a change of venue in criminal cases provides that, before granting the order, the court shall be satisfied that the representations of the moving party are true. The question whether a fair and impartial jury could be obtained depended largely upon the opinions of witnesses. Opinions differed widely, and the court adopted a very satisfactory test to ascertain the fact. The practice pursued was approved in State v. Millain, 3 Nev. 433, and by the Supreme Court of California in People v. Plummer, 9 Cal. 299, and in People v. Mahoney, 18 Cal. 181." The foregoing furnishes about all the light we may gather from the decisions of this court upon a question like that here presented. Outside of the fact that every case where a change of venue is sought must come within certain broad principles, each case must be determined upon its own particular facts.

The defendant's motion for a change of venue under the provisions of the statute was first made on September 26, 1906, after two days had been spent in examining jurymen, and after 81 jurymen had been exam ined upon their voir dire, with the result that only 11 had been passed, 3 of whom were passed over defendant's challenge for cause. At this time none of the 8 peremptory challenges allowed to each side had been exercised. The motion was based upon a lengthy affidavit of the defendant, affidavits of defendant's three attorneys, and the testimony of witnesses taken before the court. Affidavits and the testimony of witnesses in op