People v. Hanselman

McFarland, J. The defendant, who is appellant here, was convicted of the crime of grand larceny, averred to have been committed by taking three dollars from the person of F.O. Slanker.

The motion in arrest of judgment should have been granted. There is no pretense of an averment in the information that the thing alleged to have been taken was the property of any person other than the appellant. The attorney-general admits this omission to be a fatal defect, “unless the code had changed the rule.” But the code does not make any change which would justify a pkader in omitting from an indictment any essential element of the crime sought to be charged. And under all definitions of larceny found 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 in-' dictment. (2 Archbold’s Criminal Law, 357 et seq.; 2 Russell on Crimes, 107.) To disregard this firmly fixed- and universal rule, in order to condone the faultiness of the information in this case, would be to commit anací of judicial usurpation. The case of People v. Hicks, 66 Cal. 103, cited for respondents, is against them. In that case the court held that there was a sufficient averment that the property stolen belonged to the prosecuting witness; and the opinion went upon the theory that such an averment was necessary. For this reason, therefore, the judgment must be reversed.

But as the case may possibly be tried again under another information or indictment, it is proper to notice .the second point made by appellant. The appellant [462]claimed that he was not present at the time of the alleged commission of the larceny, and introduced some evidence tending to prove an alibi. The jury, however, had a right to believe the testimony of the prosecuting witness, Slanker. But the appellant contends that Slanker’s testimony, taken as true, does not make out a case of larceny, because it shows that the money was taken with his (Slanker’s) consent. The statement of Slanker was substantially this: He was a constable in the town of Pomona, and some crimes having been committed in the town, he, for the purpose of detecting the thieves, on the night of the alleged larceny, disguised himself and feigned drunkenness. After staggering aroun d the streets awhile, he lay down in an alley and pretended to be in a drunken stupor. Shortly afterward, the appellant and another person came to him and took from his person three dollars, which he had put in the pocket of his overalls. He was perfectly conscious at the time and made no resistance, and intended that any thief who tried it should be allowed to take the three dollars in order that a case of larceny might be made out against him. He had no previous suspicion, however, of the appellant, and was surprised at his participation in the act. And under these circumstances counsel for appellant contends that the thing done was not larceny, because the money was not taken against the consent of the prosecuting witness.