The record in this case discloses that defendant-appellant was convicted of the crime of grand larceny in the District Court of the Fifth Judicial District of the State of Idaho, in and for Franklin County. An appeal from the judgment of conviction is now before this court.
The charging part of the information is as follows:
"The said Dean William Kenworthy * * * on the 6th day of May, A.D. nineteen hundred and forty-seven at the County of Franklin, in the State of Idaho, did then and there steal, take and carry away from the Palmer Implement Company store in Preston, Idaho, certain saddles and blankets, headstalls, gloves, riding boots, a twenty-two rifle, and a Remington typewriter, the property of the said Palmer Implement Company, and of the value of about Fifteen hundred Dollars. Contrary to the form, force, and effect of the statute in such cases made and provided."
Section 17-3501, I.C.A., defines larceny as follows:
"Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another."
Section 17-3504, I.C.A., is as follows:
"* * * 1. When the property taken is of a value exceeding sixty dollars. * * *"
I incline to the opinion that the information in the foregoing case does not adequately charge the crime of grand larceny. It will be noted that it does not charge in the form of the statute defining larceny, for the reason that there is not included therein that the stealing, taking, carrying, leading, or driving away of the personal property alleged to have been stolen was "feloniously" stolen and, furthermore, that it does not allege that it was stolen with intent to deprive the owner permanently of his property.
In 32 Am.Jur. 121 at page 1033, it is said:
"The corpus delicti in larceny is constituted of two elements: (1) that the property was lost by the owner; and (2) that it was lost by a felonious taking. It is, of course, necessary that the corpus delicti be established, since it is clearly not permissible that anyone be adjudged guilty until *Page 326 it is shown that a larceny has been committed; and unless the state has shown, prima facie, that a larceny has been committed, the defendant is not put on proof."
To prove the corpus delicti in larceny cases it is necessary to show that the property is taken from the possession of the owner without his consent, and that its removal is with a felonious intent. People v. Siderius, 29 Cal. App. 2d 361,84 P.2d 545.
In 52 C.J.S., Larceny, § 73, p. 865, it is said:
"It has been asserted that an accusation charging larceny as that offense is defined by statute should follow the language of the statute or the code form, and that, where the language of the statute is plain and its meaning well understood from the face of the statute and its previous judicial interpretation, a departure from the statutory language ought not to be practiced; * * *."
In the case of People v. Devine, 95 Cal. 227, 30 P. 378, 379, is cited the case of State v. Homes, 17 Mo. 379, 57 Am.Dec. 269, wherein it is stated that Mr. Freeman said: "`To constitute the offense of larceny it is absolutely necessary that the taking of the goods be with a felonious intent;' and cites more than a hundred cases in support of that rule. 'We cannot sustain the conviction without confounding the distinction between criminal acts and such as, however reprehensible, involve only a violation of private rights and injuries, for which there is a remedy only by civil action.' McCourt v. People, 64 N.Y. 583." And a quotation from 1 Hale, P. C. 507, says:
"`Every taking, by one person of the personal property of another, without his consent, is not larceny; and this, although it was taken without right or claim of right, and for the purpose of appropriating it to the use of the taker. Superadded to this, there must have been a felonious intent, for without it there was no crime.'"
And, again a quotation from the case of McCourt v. People, supra, is the following:
"`One person may take or carry away the property of another of the value of fifty dollars, without being guilty of any offense whatever. But if he does the act feloniously, the statutory crime is committed.'"
And a quotation from People v. Cheong Foon Ark, 61 Cal. 527, says:
"`It is clear that a charge of larceny, which requires an intent to steal, could not be founded on a mere careless taking away of another's goods.'"
In 52 C.J.S., Larceny, § 27, at page 821, it is said:
"The animus furandi or intent to steal is the intent of the taker to deprive the owner permanently of his property, and it is stated as a broad general rule that such an intent is an indispensable component of larceny, for without it, the taking, although *Page 327 it may constitute some other crime, cannot be larceny. However, as will be shown infra subdivision b of this section, in a number of cases which purport to apply common-law principles, persons were held guilty of larceny in spite of the fact that it was not the intention of the taker permanently to deprive the owner of his property; and so it has been said that the only rule as to felonious intent in larceny to which all the cases can be reconciled is that the intent of the taker must be to appropriate the stolen property to a use inconsistent with the property rights of the person from whom it was taken."
In the case of State v. Hurst, 36 Idaho 156, 209 P. 724, 726, a grand larceny case, reversed and remanded, is the following:
"In order to establish, either by pleading or proof, the crime of grand larceny, it must appear that the property belonged to some particular person; that it was taken from him without his consent and against his will, and with a felonious intent to steal it, and deprive the owner permanently of its use. These allegations are material, and must be established beyond a reasonable doubt. Unless so established the evidence is totally insufficient to sustain a verdict of conviction for grand larceny."
In the case of State v. Grimmett, 33 Idaho 203, 193 P. 380,384, the judgment was reversed and a new trial ordered, is the following:
"This statute in nowise relieves the state of the burden which rests upon it to state in the information or indictment every, essential element necessary to constitute the crime of grand larceny in order to state an offense under the laws of this state. Grand larceny is, and can be, committed only of property that belongs to someone. In order to establish either by pleading or proof the crime of grand larceny, it must appear that the property belonged to some particular person; that it was taken from him without his consent and against his will and with a felonious intent to steal it and deprive the owner permanently of its use."
In the case of State v. Bigley, 53 Idaho 636, 26 P.2d 375,376, prosecution for burglary, it is said:
"Bigley was thus charged with the crime of burglarizing a bank, apparently under, and as claimed by the state, section25-1110, I.C.A. Defendant contends that such section is unconstitutional because of a defective title. We do not pass on this point, and merely refer to the section to note this: That whether prosecuted under that section or under the general burglary statute, section 17-3401, I.C.A., the information and the statute require, to hold Bigley guilty, that at the time of the offense he have entered, or conspired with his confederates or accomplices to enter, the bank with the intent to commit larceny. One of the essential ingredients is the intent to take away personal property with the intention of permanently depriving the owner thereof. State v. Grimmett, 33 Idaho 203,215, *Page 328 193 P. 380; State v. Hurst. 36 Idaho 156, 209 P. 724."
In the case of State v. Rankin, 56 Idaho 64, 50 P.2d 3, 4, conviction of crime of receiving stolen property and reversed, wherein is cited numerous Idaho authorities, there is contained the following:
"Evidence which creates nothing more than a suspicion of guilt, although it be a strong suspicion, is not sufficient to sustain a conviction. 53 C.J. 534; 16 C.J. 1520."
The majority opinion cites and relies on the case of State v. Basinger, 46 Idaho 775, 271 P. 325, as the controlling authority in support of the sufficiency of the charging part of the information, even though the word "felonious" did not constitute a part of the charge. Larceny is defined by Section 17-3501, supra. The Basinger case is taken almost literally from the case of People v. Lopez, 90 Cal. 569, 27 P. 427, a prosecution for the larceny of a horse. All of the statutory provisions of the Penal Code of California incident to the sufficiency of an information, ours being identical or similar, are cited in support of the holding therein that the information was not insufficient because it did not include the word "felonious."
Section 19-1319, I.C.A., among other things says: "No indictment is insufficient * * * by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits." The "defect or imperfection in matter of form" means the descriptive matter as to the means by and manner in which the charge was accomplished. The law of this state requires (Section 19-1311, I.C.A.) that an information be direct and certain as to the person, the offense and particular circumstances of the offense charged. It also requires that it be direct and certain as to the act or omission (19-1318, I.C.A. subd. 7) charged as the offense and constituting the crime. "In other words, to simply charge that a person committed murder or larceny merely charges the name of the offense. That alone is not sufficient. It is necessary to in some way inform the party accused as to how it is claimed he committed the murder, whether by shooting, by striking a blow, by drowning, poisoning, or in some other manner perpetrating the offense; or, if he committed larceny, what property he took." State v. Smith, 25 Idaho 541, 138 P. 1107, 1108.
The case of State v. McMahan, 57 Idaho 240, 65 P.2d 156, 159, deals extensively with the sufficiency of the charging part of an information, and therein it is said: "It is for the legislature, not the courts, to say what an indictment or an information shall contain (Idaho Constitution, art. 2, § 1). The legislature has said what is required to make an accusation sufficient and the courts are not permitted to say to the contrary."
Accordingly, when it was said in the Lopez case and followed in the Basinger *Page 329 case, that an information was sufficient, even though the accused was not charged with a "felonious" act, it was a plain violation of Art. 2, sec. 1 of the Constitution, in that the Judicial Department was exercising powers properly belonging to the Legislative Department, and the holding that the word "felonious" was not necessary unmistakably amounted to "judicial repeal." We here mention that the mandate stated in the McMahan case was subsequent to the rendition of the decision in the Basinger case.
"Asportation" as defined by Black's Law Dictionary, Third Edition, is defined as, "The removal of things from one place to another. The carrying away of goods; one of the circumstances requisite to constitute the offense of larceny." The same volume defines "felonious" as, "Malignant; malicious; done with intent to commit a crime; having the grade or quality of a felony. [Citing authorities]. Proceeding from an evil heart or purpose. [Citing authorities]. Wickedly and against the admonition of the law; unlawfully. [Citing authority.] In the law of larceny, 'felonious' is synonymous with fraudulent; [Citing authority] and means done 'animo furandi,' that is, with intent to steal. [Citing authority.] The word "steal" defined by the same volume says, "This term is commonly used in indictments for larceny. ('take, steal, and carry away,') and denotes the commission of theft, that is, the felonious taking and carrying away of the personal property of another, [Citing authorities], or it may denote the criminal taking of personal property either by larceny, embezzlement, or false pretenses. [Citing authority.] But, in popular usage 'stealing' may include the unlawful appropriation of things which are not technically the subject of larceny, e. g., immovables. [Citing authorities.]"
From the foregoing we take it that the word "felonious", is indicative of a state of mind when applied to grand larceny and that the elements thereof are essential to a charge of grand larceny as required by statutory provision and does not exist and cannot be found in the word "steal". The word "steal" as contained in the statutory provision for grand larceny appears to be connected with the element of asportation and not malignant, malicious, done with intent to commit a crime, having the grade or quality of a felony and proceeding from an evil heart or purpose such as are contemplated and contained in the word "felonious."
In the case of In re Bayles, 47 Cal. App. 517, 190 P. 1034,1035, it is said:
"Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another. Section 484, Pen. Code. Every taking by one person of the personal property of another without his consent is not larceny. Felonious intent is of the essence of the crime of larceny." *Page 330
From the foregoing authorities it is made to appear that the information in the instant case does not charge grand larceny, and, regardless of other considerations, the action should be reversed and remanded.
HOLDEN, J., concurs.