People v. Cleary

McYAUGHLIN, J.

Respondent was indicted by the grand jury of Solano County for the crime of robbery and found guilty of grand larceny.

On the day fixed for pronouncing judgment, he made his motion in arrest of judgment upon the grounds: “That it appears upon the face of the indictment on which said defendant was tried and convicted, that the facts stated therein do not constitute the public offense of grand larceny or any other public offense. For the reason that said indictment does not charge that the property taken was not the property of the defendant, or was the property of any person other than the defendant.”

The motion was granted, and thereupon this appeal was taken.

It is thus apparent that the sole question here is the sufficiency of said indictment to sustain a conviction of grand larceny.

The part of said indictment pertinent to this inquiry reads as follows: “The said William Cleary, . willfully, unlawfully and feloniously, did take from the person and possession of one Peter Cadloni seventy dollars in gold and silver coin of the United States of America, which said taking of said lawful money aforesaid, was then and there without the consent and will, and was then and there, against the will of said Peter Cadloni, and was then and there accomplished by means of force used upon and against the said Peter Cadloni, by said William Cleary.”

“Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property

of another,”

and unless it can be said that the indictment in this ease charges that the property taken was owned by some other person than

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the defendant, the action of the court below must be sustained.

In

People

v.

Hanselman,

76 Cal. 461,

1

[18 Pac. 425], it was said: “Under all definitions of larceny fóund in the books, the ownership of the property averred to have been stolen in some other person than the one charged with stealing it is an essential element of the crime. The code of this state provides that it must be the property ‘of another.’ And all the authorities are concurrent to the point that this essential part of the crime must be stated in the indictment. To disregard this firmly fixed and universal rule, in order to condone the faultiness of the information in this case, would be to commit an act of judicial usurpation. ’ ’