Appeal from the District Court of the Sixth Judicial District, Lander County.

The defendant, John Berryman, having been indicted jointly with Joseph Oxford for the crime of grand larceny, and having on a separate trial been convicted as charged, was sentenced to the State prison for the term of one year. Oxford had previously been tried, convicted and sentenced to the same term. The defendant Berryman moved in arrest of judgment and also for a new trial, both of which motions were denied. He then appealed from the judgment.

It appeared from the testimony that the ore alleged to have been stolen was found concealed in the cabin of the defendants. It was a peculiar kind of ore and had evidently been taken from the mine of the Manhattan Company at a place where defendants had been employed to work for the company. When discovered, and while the ore was being removed from the cabin, Oxford stated that he and Berryman had bought it from one John Bone at the same time that they purchased the cabin from him. Testimony of this statement of Oxford was admitted on the trial of Berryman against his objections that it was made in his absence and was irrelevant as to him. But it further appeared in evidence that Berryman, upon his preliminary examination. had himself volunteered as a witness on his own behalf and had himself made the same statement. Further evidence showed that Bone never sold them any ore, and that it was not in the cabin when they purchased.

Among the instructions given were the following, asked by plaintiff:

"If the jury believe that the defendant in this case took the ore in question from the Black Ledge Mine named in the indictment, in small quantities and at different times, but that such taking was continuous and systematic, and that the object of defendant was to take a quantity of greater value than fifty dollars, and that he removed a little at a time only to escape detection to a place of concealment near the mine to be thence removed at his convenience, and that he did take away feloniously more than fifty dollars' worth of ore, this would be grand larceny and not a series of petit larcenies." "The jury are instructed that in order to make the felo

nious taking of ore from a mine, it is not necessary that any particular length of time should elapse between the severance and the carrying away; and if they should believe that the defendant severed the ore from the mine, then laid it aside, and afterward feloniously carried it away from the mine, the taking constituted the crime of larceny."

Among the instructions asked by defendant and given were the following:

"If the jury find that the ore alleged to have been taken by defendant was a part of the Black Ledge and that the same belonged to and savored of the realty, and there is no proof to convince the jury that any time intervened between the taking of the rock from the ledge and the removal from the shaft, then there is no larceny but one continuous act which constitutes only a trespass."

"If the jury find from the evidence that the defendant severed the rock from the ledge and carried it away immediately after the severance, making one continuous act, then there is no larceny."

GEORGE W. BAKER and W. H. DAVENPORT, for appellant. GEO. S. HUPP, for respondent.

By the court, HAWLEY, J.

Appellant, having been convicted of grand larceny, moved to arrest the judgment upon the ground that the indictment did not state facts sufficient to constitute a public offense. The court refused the motion and appellant thereupon appeals from the judgment.

1872,

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The indictment charges "that said defendants, Joseph Oxford and James Berryman, on the thirtieth day of July, A. D. at the County of Lauder, in the State of Nevada, * six hundred and ten pounds of silver-bearing ore, of the value of eight hundred dollars, of the property of the Manhattan Silver Mining Company of Nevada, a corporation * * did feloniously duly organized and existing, steal, take, and carry away.

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It is claimed that the property alleged to have been stolen savors of the realty, and that there is no sufficient statement of facts in the indictinent showing it to be personal property,

The rule that things savoring of the realty are not the subject of larceny is stated by Sir Matthew Hale as follows: "If a man cut and carry away corn at the same time it is trespass only, and not felony, because it is but one act; but if he cut it and lay it by and carry it away afterward it is felony." Emmerson v. Annison, 1 Mod. 89. The reasons given by Blackstone (4 vol. p. 232) for this distinction is that "Lands, tenements and hereditaments (either corporeal or incorporeal) can not, in their nature, be taken and carried away. And of things, likewise, that adhere to the freehold, as corn, grass, trees and the like, or lead upon a house, no larceny could be committed by the rules of the common law; but the severance of them was, and in many things is still, merely a trespass which depended on a subtlety in the legal notions of our ancestors. These things were parcel of the real estate, and therefore, while they continued so, could not by any possibility be the subject of theft, being absolutely fixed and immovable. And if they were severed by violence, so as to be changed into movables, and at the same time, by one and the same continued act, carried off by the person who severed them, they could never be said to be taken from the proprietor, in this their newly-acquired state of mobility (which is essential to the nature of larceny), being never, as such, in the actual or constructive possession of any one but of him who committed the trespass. He could not, in strictness, be said to have taken what at that time were the personal goods of another, since the very act of taking was what turned them into personal goods. But if the thief severs them at one time, whereby the trespass is completed, and they are converted into personal chattels in the constructive possession of him on whose soil they are left or laid, and comes again at another time when they are so turned into personalty, and takes them away, it is larceny; and so it is if the owner or any one else has severed them."

The rule containing this subtle and unsatisfactory distinction is sustained by all the authorities: 2 Bishop on Cr. L., Sections 779, 780, 781, 782, and authorities there cited. There is some conflict in the authorities as to what interval of time. must elapse between the acts of severance and asportation. The doctrine seems now to be settled, as laid down in Bishop, that no particular space is necessary, only the two acts must

be so separated by time as not to constitute one transaction. There is no substantial reason why the thief who, with felonious intent, takes and carries away apples from a tree, lead pipe from a building, or quartz rock containing precious metals from a mine, etc., etc., at one time, should not be punished the same as the thief who first severs the things from the freehold and afterward goes back and carries them away. It is the criminal intention that constitutes the offense, and this intention is the only criterion by which to distinguish a larceny from a trespass. In our judgment the more sensible rule would be that as soon as the things which savor of realty are severed from the freehold, they become eo instante the personal property of the owner, the felonious taking and carrying away of which would constitute larceny.

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So far as the present case is concerned, it is unnecessary to depart from the beaten path of precedent which the authorities have (as we think without substantial reason) established. In The People v. Williams, 35 Cal. 673, cited and relied upon by appellant, the indictment was for taking and carrying away from the mining claim of the Brush Creek Gold and Silver Mining Company * * fifty-two pounds of goldbearing quartz rock." The court said that the indictment was entirely silent as to whether the rock was a part of a ledge and was broken off and immediately carried away by the defendant, or whether, finding it already severed, he afterward removed it." The court held that the indictment was therefore capable of a double interpretation and for this uncertainty it was set aside. Larceny is the felonious taking and carrying away the personal goods or chattels of another, and if the facts stated in the indictment do not show that the ore was personal property at the time of the commission of the offense, the indictment can not be sustained. The character of the property, whether real or personal, must be determined by the statement of facts set out in the indictment. Sec. 241 of the Criminal Practice Act provides that "the words used in an indictment shall be construed in the usual acceptance in common language, except such words and phrases as are defined by law, which are to be construed according to their legal meaning." The word ore is not defined by law, and must therefore be construed in its usual ac

ceptation. The words "silver-bearing ore," as used in the indictment, have reference to a portion of vein matter which has been extracted from a lode and assorted, separated from the mass of waste rock and earth, and thrown aside for milling or smelting purposes, or taken away from the ledge. Webster gives the following definition: "Ore (mining). The ore of a metal with the stone in which it occurs, after it has been picked over to throw out what is quite worthless." In our judgment, the language used in the indictment necessarily implies that the ore had been severed from the freehold prior to the time of its asportation by Oxford and Berryman. We think that the act charged is stated with sufficient certainty to enable the court to pronounce judgment according to the right of the case, and that is all the statute, in this respect, requires: Crim. Prac. Act, 461, Sec. 243.

From the testimony elicited at the trial, it appears that Oxford and appellant while engaged at work upon the Black Ledge owned by the corporation had (in small quantities and at different times) feloniously carried away therefrom the "six hundred and ten pounds of silver-bearing ore." The question whether the acts of severance and of asportation were so separated by time as not to constitute one transaction was, under proper instructions, fairly submitted to the jury.

The court did not err in overruling appellant's motion in arrest of judgment. Appellant asks a reversal of the case. upon the ground that the court erred in admitting the statement of Joseph Oxford, made after the commission of the of fense, to the effect that the ore in question was bought from one John Bone at the same time that the cabin in which Oxford and appellant lived, and in which the ore was found, was purchased. This testimony was irrelevant and should have been excluded: 1 Green. on Ev. Sec. 111; The State v. Ah Tom, 8 Nev. 213. But it is evident that appellant was not prejudiced by its admission. In fact, the record shows that during his preliminary examination Berryman made substantially the same statement, which was properly admitted in evidence.

The judgment of the District Court is affirmed.

1 We know of no other mining region where the word " ore" implies ore severed from the realty: Morrison's Min'g. Dig., p. 253.