McLane v. Territory

¶1dissenting.—I do not concur in the conclusion reached by a majority of the court in this case. While larceny is divided into two degrees, the crime distinctly charged against the defendants by this indictment was that of grand larceny. The degree was specified in the indictment, and the verdict, “Guilty as charged in the indictment,” was a clear and unequivocal affirmation of the truth of every material allegation of the .indictment, and a finding that the defendants were guilty of grand larceny. They were not charged with petit larceny, for the value of the property taken was alleged to be sixty dollars. It is true that under the indictment there could have been a conviction of petit larceny if the remaining allegations had been proven, and the evidence had failed to show that the property was of a value exceeding fifty dollars; but this is because of the provision of the statute which permits the jury to “find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged.” A conviction of the lesser offense, however, would have required a different form of verdict from that which was returned. The crime of grand larceny consists of a certain number of indispensable elements. Without them all, it does not exist. With them all, charged in the indictment, and found to be true “as charged,” there can be no doubt as to the meaning of the verdict. It is a plain and unambiguous finding of the “degree of the crime” of which they have found the defendants guilty, and I do not think the statute demands more than this. The intention of the jury is clear, the defendants are not prejudiced, and the court is able to pronounce judgment upon the verdict, even though a reference to the indictment is required, as in most criminal cases. I know that there are authorities to support the view which the majority of the court have taken. These adjudications began about the time that murder was distinguished into degrees. Some of the statutes upon which these decisions are based—generally murder statutes—require, in varying *158terms, that the jury “shall ascertain in their verdict the degree,” “shall designate hy their verdict the degree,” “the verdict shall specify the degree,” etc. Our own statute merely requires that the jury “must find the degree of the. crime.” They have so found in this case, and it seems to me that the reversal of the judgment is rested upon a refinement of technicality.