#### STATE, Appellant, *v.*MJELDE, Respondent.

(No. 1,978.)

(Submitted January 8, 1904.

Decided February 1, 1904.)

*Criminal Law*— *Indictment*— *Duplicity*— *Mode of Raising Question*— Larceny—Property *of Different Owners*— Single *Act of Taking*— Appeal *by State*— Reversal—Remand.

1. An objection to an information for grand larceny that it joins several distinct offenses, each of which alone would constitute petit larceny, is addressed to the jurisdiction of the court, rather than to the form of the information, and therefore may be raised by an objection to the introduction of any evidence and a motion to compel an election.

2. Three persons placed at the same time individual sums, less than $50, on the table of an agent, who by one act collected them, placed them in his pocket, and afterwards appropriated them to his own use. *Held,*to constitute a single offense of grand larceny, so that an information charging chat he, as the agent of such three persons, had money in his possession in the aggregate of the sums belonging to each, the specific ownership being alleged, and appropriated it to his own use, was not bad for duplicity.

3. Where on appeal by the state — in a criminal ease — from an order of the trial court directing a verdict for the defendant, the supreme court reverses such order, the case will be remanded for a new trial.

*Appeal from District*Court, *Sweet Grass County; Frank*Henry, *Judge.*

B. M. Mjelde was informed against for grand larceny, and from a directed verdict of acquittal the state appeals.

Reversed.

*491*Mr. James DonovanAttorney*General, for the State.

ME. COMMISSIONER POOEMAN

prepared the opinion for the court.

This is an appeal by the state from an order directing the jury to find for the defendant. The defendant was informed against and tried for grand larceny. The information charges the offense as follows: “That at the county of Siweet Grass, in the state of Montana, on or about the 18th day of February, A. D. 1903, and before the filing of this information, the said B. M. Mjelde was the agent of Olaus Mydland, Syvert Myd-land and Lars Grosfield, and then and there had in his possession, custody and control; as such agent of the said Olaus Myd-land, Syvert Mydland and Lars Grosfield, money to a large amount, to-wit, to the amount of one hundred and two' dollars, and of the value of one hundred and two dollars, a'more particular description thereof being to informant unknown, forty dollars of the above-described money being the property of and belonging to said Olaus Mydland, and forty dollars of the above-described money being the property of and belonging .to said Syvert Mydland, and twenty-two dollars of the above-described money being the property and belonging to Lars Grosfield, the the aggregate of said sums of money, to-wit, the said amount of one hundred and two dollars, being then and there received by the said defendant, B. M. Mjelde, as such agen,t aforesaid, at one and the same time, from the said Olaus Mydland, Syvert Mydland and Lars Grosfield, and then and there he, the said B. M. Mjelde, as such agent aforesaid, did willfully, unlawfully and feloniously appropriate to his own use and steal said money to the amount of one hundred and two dollars, with the intent then and there to deprive and defraud,” etc.

At the trial the defendant objected to the introduction of any evidence, “for the reason that said information states three separate and distinct offenses.” The court overruled this objection at the time, reserving final ruling thereon until the conclusion of the state’s case: The defendant then moved the court *492to compel tbe state toi elect wbicb one of tbe three distinct offenses stated in tbe information it would proceed upon. This motion was also overruled.

Tbe evidence introduced by tbe state was to tbe effect that Olaus1 Mydland, Syvert Mydland and Lars Grosfield went- into tbe office of tbe defendant, and each paid to bim tbe separate sum of money named in tbe information, wbicb was to be sent by tbe defendant to tbe land office as filing fees on three distinct pieces of land; that sucb payment was made by all of tbe said parties placing their money on tbe table in tbe office of defendant at tbe same time, and that when tbe whole sum was laid on tbe table tbe defendant took tbe same at one time, “put a string on it, and put it in a paper,” and “put it in bis pocket;” that defendant did not remit the same, but appropriated it to bis own use. It was shown that no one of tbe parties who made tbe joayment bad any interest whatsoever either in tbe money paid by either of tbe other parties or in tbe land for which tbe money was paid. At tbe close of tbe state’s evidence tbe court directed a verdict for tbe defendant, and tbe jury thereupon returned a verdict of not guilty.

No appearance is made in this court by or on behalf of the respondent. The- state insists that defendant was properly charged with grand larceny; that objections for duplicity, where tbe same appear on tbe face of the information, must be raised by demurrer; and that, if tbe information does not allege facts sufficient to constitute grand larceny, tbe district court bad no jurisdiction, and should have dismissed tbe case without trial. Sections 1922, 1930 and 2200 of tbe P'enal Code, *State*v. Mahoney, 24 Mont. 281, 61 Pac. 647, and *State*v. *Lee,*33 Oregon, 506, 56 Pac. 415, are cited by tbe state as supporting tbe contention that a demurrer should have been filed. Tbe objection made, however, is addressed to tbe jurisdiction of *the*court, rather than to> tbe form of the information, and tbe law cited does not apply. The objection made is sufficient to raise tbe question as to whether tbe offense of grand larceny is stated in tbe information.

*493Section 880 *et seq.*of the Penal Code contains the definition of larceny, which is, in substance, that every person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, takes property from the possession of another, or, having in his-possession property of another, appropriates the same to his own use, or that of any other person other than the one entitled to it> is guilty of larceny. When the property taken is of a value exceeding’ $60, or when, it is taken from the person of another, it is termed grand larceny; otherwise, petit larceny. Under this section what at common law constituted the offenses of larceny and embezzlement are merged in the one offense of larceny, and thereby the distinction formerly recognized between cases where the taking was unlawful and those where the possession had been lawfully obtained is abolished.

Property must have an owner before it is the subject of larceny, but this statute does not define the character of that ownership — whether it is general or special, joint or several, absolute or qualified, arises from title or from possession. The particular ownershipi of the property stolen does not fall within the definition, and is not of the essence of the crime. Neither the legal nor moral quality of the act is affected by the fact that the property stolen, instead of being owned by one, or by two or more jointly, is the several property of different owners. The gist of the offense is the felonious taking or appropriation. The grade of the offense is determined by the value of the property taken. The time and place of the taking and the ownership, of the thing taken must be alleged in the information, not to give character to the act of taking or appropriation, but merely by way of description. The fraud is against the owner; but the crime, of which the fraud is one ingredient is against the state, and not against the owner, owners or ownership. The prosecution is conducted in the name and by the authority of the state. The owner of the property stolen is not a party thereto.

*494Tbe great weight of authority sustains the principle that, where several articles of *property*belonging either to one or several owners are taken at the same time and place, the act is a single transaction, and constitutes but one larceny. Although the information may charge the taking of a particular article or all the articles stolen, a trial for-stealing a part is a bar to any subsequent action for the stealing of the remainder. This very question was once presented.to this court in *State*v. *English,*14 Mont. 399, 36 Pac. 815, but was not directly decided. The defendant in that case was convicted of stealing a cow belonging to Lars Waldeland. Prior to that time he had been arrested and tried for stealing a steer belonging to Charles Carthrae. The facts appeared to be that defendant and one other first cut out the steer from Carthrae’s herd, drove it some distance, and left it, and in about half an hour afterward they went to; the herd of Waldeland, about half a mile distant, and took the cow. The court held that the taking of these two animals. was at different times and places, under different circumstances, and from different owners, and that under the circumstances each was in itself an absolute^ complete and independent offense.

In *Hoiles*v. *United States,*3 MacArthur, 370, 36 Am. Rep. 106, the court, in discussing, this very principle, quotes with approval 2 Puss, on Or. 177: “Put it seems that if the property of several persons, lying together in one bundle, or chest, upon the same table, or even in the same house, be stolen together at one time, the value of the whole may be put together, for such stealing is one entire felony.” The court also quotes 1 Hale’s P. C. 531: “But it seems to me that if, at the same time, he steals goods of A. to the value of sixpence, goods of B. to. the value of sixpence, and goods, of C. to the value of sixpence, being perchance-in one bundle, ■ or upon a table, or in one shop-, this is grand larceny, because it is one entire felony, done at the saane time, though the persons had several properties ; and therefore in one indictment they make grand larceny.”

In *Lorton*v. *State,*7 Mo. 55, 37 Am. Dec. 179, the court says: “The stealing of several articles of property at the same *495time and place constitutes but one offense against the laws, and the circumstance of several ownerships cannot increase of mitigate the nature of the offense.” This decision is approved in *State*v. *Morphin,*37 Mo. 373. See, also, *State*v. *Wagner,*118 Mo. 626, 24 S. W. 219.

In *State*v. *Larson,*85 Iowa, 659, 52 N. W. 539, it is said that an indictment charging the larceny on a certain day of thirty-two bushels of flaxseed in sacks, the properly of one L., and forty-eight bushels of flaxseed, the property of one P., is not objectionable upon the ground of duplicity.

In *State*v. *Mickel et al.,*23 Utah, 507, 65 Pac. 484, the defendant was indicted, in one count for stealing twenty mares and three horses, the property of several owners, stating the names of the' several owners, and specifying the number of animals belonging to each. The court held that the indictment was not bad for duplicity. To'the same effect are the following: *United Staies*v. *Scott*(C. C.), 74 Ped. 213; *State*v. *Douglas,*26 Nev. 196, 65 Pac. 802; *State*v. *Colgate,*31 Kan. 511, 3 Pac. 346, 47 Am. Rep. 507; *Furnace*v. *State,*153 Ind. 93, 54 N. E. 441; *People*v. *Johnson,*81 Mich. 573, 45 N. W. 1119; *Haywood v. Territory*(Wash.), 2 Pac. 189; *State*v. *Hennessey,*23 Ohio St. 339, 13 Am. Rep. 253; *State*v. *Nelson,*29 Me. 329; *Fulmer*v. *Commonwealth,*97 Pa. St. 503; *State*v. *Newton,*42 Vt. 537; *Alexander*v. *Commonwealth,*90 Va. 809, 20 S. E. 782; *State*v. *Merrill,*44 N. H. 624; *State*v. *Cooper,*13 N. J. Law, 361, 25 Am. Dec. 490; *Roberts*v. *State,*14 Ga. 8, 58 Am. Dec. 528; *Nichols*v. *Commonwealth,*78 Ky. 180; *Bushman*v. *Commonwealth,*138 Mass. 507; *Gravatt*v. *State,*25 Ohio St. 162; *Lowe*v. *State,*57 Ga. 171; *State*v. *Warren,*77 Md. 121, 26 Atl. 500, 39 Am. St. Pep. 401; *Waters*v. *People,*104 Ill. 544; *Kelly*v. *State,*7 Baxt. 323; *Wilson*v. *State,*45 Texas, 76, 23 Am. Rep. 602; Papalje on Larceny, par. 117.

In *State*v. *Reinhart,*26 Oregon, 466, 38 Pac. 822, it is said that, where confidential relations exist, the aggregate amount-taken by the defendant, though at different times and in differ*496ent amounts, may be considered as one act, and as constituting one offense.

Whether, under the provisions of the Penal Code, the acquittal of the defendant on the former trial is a bar to a second trial, is a question not now before the court; but the procedure heretofore observed by this court where the contentions of the state on appeal from a similar order were sustained has been to remand the case for a new trial. *(State*v. Herron, 12 Mont. 230, 29 Pac. 819, 33 Am. St. Rep. 576, opinion on rehearing page 300, 12 Mont., 30 Pac. 140. See, also, Section 2324, Penal Code.)

We recommend that the order appealed from be reversed, and the case remanded for a new trial.

Pee. CukiaM.

Por the reasons stated in the foregoing opinion, the order is reversed, and the case remanded for a new trial.