(dissenting).—I am unable to yield assent to the proposition announced by the majority of my associates, that the legislature in enacting § 52 of the Penal Code, intended to express the idea that larceny may be committed of the animals therein mentioned without reference to value. By that statute *590the legislature made it larceny to steal certain domestic animals “ of any value,” hut it does not seem to me that hy the use of those words they intended to convey the idea that it would be larceny if the animals taken were of no value whatever. On the contrary, I think the phrase “of any value” clearly indicates that the animals mentioned must be of some, value, and, if that is so, then we must entirely ignore this portion of the statute in order to say that it was the intention of the legislature to create this distinct offense of larceny without reference to value. To constitute petit larceny the, value of the property stolen may be any.sum less than $30 (Penal Code, §49). To constitute grand larceny, the value must be. $30 or more (Penal Code, §48), but to constitute this distinct crime of larceny of animals the value may be any sum whatever, but it must be some appreciable amount; it cannot be nothing.
It is said, however, that the only reason that ever existed for alleging and proving value was that the value determined the punishment and the grade of the offense, and .that, as the reason no longer exists the rule itself is not binding. That would seem to be the view of Archbold, but I have seen no other authority, save the Montana case to which I shall hereafter more particularly refer, which, in my opinion, goes so far as to justify the conclusion reached by the majority of the court in this case. It seems to me that the quotations from Bishop on Statutory Crimes and Criminal Procedure do not admit of the broad construction placed upon them. In the section referred to in his work on Statutory Crimes, that learned author says that the.value of the thing .stolen must'be alleged and proved when the punishment or its degree depends on value; but when it does not it need not *591be. But the. question is, when does the punishment depend on value? It appears clearly to my mind that it depends, in some measure at least, on value in every ease of larceny, except where the legislature has expressed a contrary intention, for the reason that “ an indictment cannot he sustained for stealing a thing- of no intrinsic or artificial value. Wharton, Criminal Pleading and Practice, (9th ed.), §213.
. See, also, 2 Russell, Crimes, p. 125; Roscoe, Criminal Evidence, p. 684.
The language quoted from § 541 of 1 Bishop’s Criminal Procedure, viz., that “ if the statute makes it a distinct offense to steal a horse or any other specific article irrespective of. its value, . . . the value need not be alleged in the indictment,” is not applicable to cases arising under our statute. This is clearly shown not only by the cases cited (Lopez v. State, 20 Tex. 780; People v. Townsley, 39 Cal. 405; Davis v. State, 40 Tex. 134); but by what the author says in § 713 of vol. 2 of that treatise. In this last mentioned section he says: “There are in some of our states statutes against the stealing of horses, cattle and other specific things, making no mention of value. Under them, therefore, value need not be averred; or, if averred, it need not be proved;” and in support of the text he refers to §541 of the first volume and to §427 of Statutory Crimes, both of which, it has been observed are quoted in the majority opinion.
It will thus be seen that Mr. Bishop did not intend to convey the idea that value need not be alleged under such statutes as ours,- but only under those in which value is not mentioned at all. And, besides, it is a well settled rule of criminal pleading that an indictment or information for a statutory crime must allege every element entering into the definition of the *592offense charged. This may he done, in this state, by using either the language of the statute or words of equivalent import, but not by omitting or disregarding any portion of the statute. Of course, the precise value alleged need not be proved, but it must be shown that the animal or animals stolen are of some value, or else the words “ of any value ” must be deemed force-less and meaningless. And this latter alternative finds no recognition in any known rule of statutory construction.
In the case of Territory v. Pendry, 9 Mont. 67 (22 Pac. 760), cited in the majority opinion in this case, the supreme court of Montana held, on the trial of an indictment for stealing a steer, under a statute making it grand larceny to steal certaiu designated animals, whatever may be their value, that it was not necessary to allege or prove that the animal was of any particular value. But, while I fully recognize and appreciate the ability and learning of that court, I am constrained to say that, in my judgment, the decision in that particular case is not only wrong in principle, but it is not sustained by the cases cited. In support of its ruling the court refers to the following cases: Houston v. State, 13 Ark. 66; Lopez v. State, 20 Tex. 781; People v. Townsley, 39 Cal. 405; State v. Wells, 25 La. An. 372; State v. Thomas, 28 La. An. 827. As already shown, some of these cases are referred to by Mr. Bishop in discussing the point here in .question; but they are based on statutes materially different from ours and in which no mention whatever is made of value.
In the Arkansas case the value of the horse alleged to have been stolen was specifically set forth in the indictment, but no particular value was proved on the trial, and the court held that the value might be inferred from certain facts and circumstances in evidence. *593If tlie value had been deemed unimportant it is obvious that there would have been no need of discussing that question at all.
Under the California statute, “ to feloniously steal, take and carry away any horse,” etc., is grand larceny, and hence the court held, in the case cited, that the element of value did not enter into the definition of the offense, and that the indictment was sufficient inasmuch as the offense charged was described substantially in the language of the statute, though no value was stated.
The statute under which the Texas case was decided reads as follows: “If any person shall steal, take or carry away any horse, mule, ass, cattle, sheep or goat, the property of another, he shall be punished by confinement to hard labor in the penitentiary, not less than one, nor more than seven years;” and the Louisiana statute upon which the decisions cited from that state were predicated, declares that “whoever shall steal any horse, ass, or mule shall suffer imprisonment at hard labor not less than one year nor more than five years; ” Rev. St. La., § 814.
It is manifest, therefore, that the decision in the case of Territory v. Pendry, supra, should not be accepted as an expression of the law of this state. If our statute were like that of California, Texas or Louisiana, there would be good reason for holding this information sufficient, though Mr. Wharton seems to think that even the decisions under those statutes are doubtful law. Wharton, Criminal Pleading & Practice (9th ed.), §215.
For the foregoing reasons I think the judgment of the court below should be reversed.
Gordon, J., concurs in dissenting opinion.