
    The State of Ohio v. David Hennessey.
    Where several articles of property are stolen at the same time, the transaction being the same, the whole, although they belong to different owners, may be embraced in one count of the indictment and the taking thereof charged as one offense.
    Error, on bill of exceptions, taken on behalf of the state in the Court of Common Pleas of Lucas county.
    The defendant was indicted at the October term, a. d. 1872, of the Court of Common Pleas of Lucas county, for the crime of larceny. The indictment contained three counts, the second of which charged the defendant with feloniously stealing certain articles, the property of Lucinda E. Bevins, and certain other articles, the property of Ebenezer Bevins; the value of the property belonging to each being stated.
    Upon the trial of the case, a bill of exceptions was taken on behalf of the state, by which it appears that the prosecuting attorney, having given evidence tending to prove the taking by the defendant of the articles charged to be the property of Ebenezer Bevins, offered testimony to prove the taking by defendant of the property alleged to be the property of Luciuda E. Bevins; and offered, at the same time, to prove that all of the property mentioned in said second count was stolen at the same time, and that the stealing thereof was one and the same transaction.
    - The testimony thus offered on behalf of the state was objected to by counsel for defendant. The court sustained the objection, and thereupon directed the prosecutor to confine the further testimony to be given in the case to proof of the larceny of the property of either one of the; two persons named, as he might elect, to the exclusion of any and all testimony to prove the larceny of the property of the other.
    These rulings of the court, as appear by the bill of exceptions, were duly excepted to by the prosecutor. They are-now, on behalf of the state, complained of as erroneous;, and the case is brought here to obtain the opinion of this-court, upon the questions presented, in pursuance of section. 158 of the criminal code.
    
      J. D. Ford, prosecuting attorney, for the state:
    The stealing of property belonging to different owners, at the same time, in the same act, constitutes but one offense,, and the aggregate value of all the property may be proved under an indictment to establish a charge of grand larceny,, and it is error for the court to compel the prosecutor to treat each ownership as constituting a distinct offense, and to elect when the several ownership is properly laid in the indictment, Lorton v. The State, 7 Mo. 55; State v. Merrill, 44 N. H. 624; 1 Hale’s Pl. Cr. 531; 2 Russell on Crimes, 126; 3 Chitty’s Crim. Law, 959; 2 East’s P. C. 740, 741; Rex v. Birdseye, 4 Carrington & Payne, 386; Engleman v. State, 2 Carter, (Ind.) 91; Dowley v. Commonwealth, 9 Grattan, 727; People v. Austin, 1 Parke C. C. 154; Cash v. State, 10 Humph. 111; Nelson v. State, 29 Maine, 324; Com. v. Dobbins, 2 Parsons, 380; Wharton’s Am. Crim. Law, 4 ed. 259.
    The ownership of the property in this case is properly-laid in the indictment. Should the proof of ownership-correspond precisely as divided in the second count in the indictment, a verdict of guilty under that count would be-sustained.
    Should any portion of the property laid in the second count as the property of Lucinda Bevins, in fact belong to Ebenezer Bevins, proof of that fact would have been admissible by virtue of the first count.
    
      
      C. F. France, for defendant in error:
    There can be no doubt that a man may. be indicted and ¡convicted for stealing several different articles of property from the same person at the same time and place, and if the value of them all is more than thirty-five dollars, will constitute grand larceny; if less than that sum, petit larceny. But whether stealing property of several individuals at the same time and place, which taken together exceeds the value-of thirty-five dollars, if severally less than thirty-five dollars, is grand larceny, is a question to be determined.
    According to 1 Hale’s Crim. Law, 531; 2 Russell on Crim. 126; 2 East’s Crim. Law, 741; 3 Chitty’s Crim. Law, 959; Wharton’s Crim. Law, 99; Com. v. William, Thach. Crim. Cases, 722; Lorton v. The State, 7 Mo. 55; The State v. Morphin, 37 Mo. 373, and State v. Merrill, 44 N. H. 624, it seems that under certain circumstances, such stealing of the property of several owners may be treated as one offense.
    The principle upon which the courts seem to be guided in determining whether one or more offenses have been committed, I conclude to be this: Where there are two indictments against defendant, and he is tried and might have been convicted by proof of the facts contained in the one as in the other, an acquittal on the one is a bar to the other. 2 Leach’s Pl. Cr. 720; 2 East’s Pl. Cr. 520; Price v. The State, 19 Ohio, 423; Archbold’s Pl. Cr. 87; Roscoe’s Crim. Ev. 331. If there had been a few hours’ difference between the time of taking the property, there would be no question as to there being two larcenies. Tet all the facts in the two trespasses might agree exactly with the exception of the few hours time. Time is seldom held to be material in criminal prosecutions — the ownership is. If time is sufficient to make separate and distinct larcenies, why is it not more reasonable to say that different ownerships ought to ? When crimes are so distinct, that evidence of the one will not support the other in every particular, it is as inconsistent with reason, as it is repugnant to the rules of the law to say, that they are so far the same that an acquittal of the one shall be a bar to the prosecution for the other.
    Now, what plausible reason is there to be given why, in the case of larceny, and larceny alone, if a person at one and the same time, at one and the same place, and by one and the same act, steals the personal goods of several individuals, he has committed but one offense. Yet, if lie,, by one and the same revolver, by one and the same ball, by one and the same shot, and at one and the same time, shoots at and hits A. and B. with intent to kill them, he has committed two separate and distinct offenses. Again, he may set fire to, and burn A., B., and C.’s houses by one and the same act; here he has committed three separate and distinct arsons, and could be punished for each. Yet, if the three houses belonged to A. alone, he would be liable to be indicted and punished for one offense.
    We submit, then, there is no reason or principle why the-offense of larceny should follow a different rule or principle-from any other criminal offense, or that a person charged with this offense should be called upon to defend and establish his innocence in contravention of the precedent “ that a criminal can only be called upon to answer for one offense at a time.”
    In order to make one offense of this transaction, the court will have to find that the larceny of E. B.’s property was a necessary ingredient or accompaniment to complete the crime of the larceny of the property of L. E. B. A crime may be sometimes indivisible, and two offenses committed at the same time — as in the case of assault and battery. But where the offenses are separable, and one does-not depend on the other — as where a person at the same-time and by the same act assaults two persons with intent to kill them, or where he steals several articles of property belonging to as many different persons — they can not be-united and prosecuted as one offense.
    Again, let us look at the case from a civil point of view. It is said (and I think fully sustained by the authorities),, that all the rules that apply to civil pleadings, apply with increased force and great strictness to criminal. 1 Sandf. 250, and note; Chitty Crim. Law, 169, 175, 280, 281; 1 Cliitty’s Pleadings, 216, 237, 255; 1 Starkie’s Ev. 253, 255; 4 Black Com. 306, 307, and note; Curtis v. The People, 1 Ill. (1 Scam.) 285; Kain v. The State, 8 Ohio St. 218. Suppose A. should go on the premises of B., and take two-horses belonging severally to C. and D., claiming and supposing them to be bis own. A demand is made of B. for the horses, and he refuses to surrender them. Here an action of replevin would lie. Yet it could not be maintained jointly by C. and D. But if B. should enter upon A.’s premises, and feloniously steal and drive away C. and D.’s horses, he would commit the crime of larceny. Is there anything in the criminal case that a different rule of pleading should apply from the civil ?
    Yet, whichever way the weight of authorities may be (and I have endeavored to cite both pro and con), I think our statute settles the case beyond any doubt in favor of the ruling of the learned judge in the court below.
    In 66 Ohio L. 341 it is provided, “ That if any person shall steal any money, or goods and chattels of any kind whatever, of less value.than thirty-five dollars, the property of another, etc., every person so offending, on conviction thereof, shall make restitution to the party injured in twofold the value of the property stolen.” If this was the extent of the punishment provided by this section, to be inflicted by the court in passing sentence, there would be no doubt, that if a man would steal goods of a hundred individuals at the same time and place, each of a less value than thirty-five dollars, he would commit a hundred separate and distinct offenses; for each party would be entitled to a separate judgment for twofold the value of his property stolen. The statute would/be imperative, and there would be no possible way by which the court could avoid giving a separate judgment for each individual injured to the amount of double the value of his property stolen; and this could only be done on separate indictments. The last clause of the act would seem to modify the first, and not render the
    
      clause for twofold damages so imperative as I have quoted; but as we can not prosecute and convict criminals in away that would render any portion of the statute inoperative to the court in the exercise of its discretionary power in passing sentence to meet the requirements of the law, as the court might think just and proper, as the case might require, the effect of the statute would be equally the same, whether as it is, or as I have quoted.
    The second count in the indictment (and the court will observe this is the only count in which the question under consideration could arise), the property of E. B., as there set forth, amounts to only eleven dollars. As to him the crime is petit larceny’, and by the provisions of the statute he may- or may not, according as the case might appear to the court, have an interest in the case. To put the defendant on trial in any manner that will deprive him of this right, if the court felt disposed to award him twofold damages, is a clear and manifest violation of the statute. It is such a right at least that could only be enforced through the court in passing sentence upon the prisoner. He would have no right to, neither could he in these minor offenses institute civil proceedings to collect twofold damages. But let us -admit, for the sake of argument, that a civil action might he maintained, yet the intention of the legislature could not be complied with. In a civil action, suit could only be 'brought for ‘and judgment rendered for the actual value of the property taken. If the court, in the exercise of its discretionary power, should render judgment for double the-value of the property taken, and order the defendant to pay this amount, it would be in the nature of a sentence, .and the defendant might twice be punished for the same offense. Suppose this action tó have occurred, and subsequently and before trial the legislature would repeal that part of the section relative to twofold damages. This would not divest E. B. of having the criminal tried under the statute ;as it- stands, even though the restitution to the party injured may be discretionary with the court; yet the court must have the opportunity of passing the sentence, if it feels so disposed. The clause for restitution may be as much a part -of the sentence as the imprisonment. It was evidently the intention of the legislature, in these minor offenses, to compensate parties for their property stolen. We insist that the judgment for twofold damage is a separate judgment.
    We submit, then, that the stealing of several articles of .property of different individuals, at the same time and place, constitutes separate and distinct offenses, and can not be united in one indictment and tried as one felony. We refer the court to the following cases: Com. v. Andrews, 2 Mass. 409; Stute v. Thurston, 2 McMullen, (S. C.) 382; Regina v. Brettle, 1 Car. & Marshman, 608; Rex v. James and William Turner, Kel. 30; Rex v. Jones & Beaver, Kel. 52, 2 East Pl. Cr. 519; The King v. Pedly, 1 Leach Pl. Cr. 242; State v. Nelson, 8 N. H. 163; Smith v. Com., 7 Gratt. 593, 2 Leach Pl. Cr. 716; People v. Warren, 1 Parker’s C. C. 338.
    
      J. D. Ford, in reply:
    The ruling of the Common Pleas deprived the state of a legitimate investigation-of the one transaction, whereby we might have discovered whether Hennessey by that transaction, entire, undivided in that one act, had done that which under the law made him guilty of grand larceny, petit larceny, or perchance of neither. The court, in effect, compelled us to cut that transaction — which had been fully and legally covered by the charge in this indictment —in twain, examine one part of it, and the remainder to this time remains unexamined; a proceeding, I submit, which is without precedent either in the text-books or .adjudicated cases.
    In the cases cited by my brother France, the question has arisen out of the separation of the transaction by the prosecutor; while in this case, the state has “joined” the whole transaction in one indictment. In People v. Austin, 1 Parker’s C. C. 154, the indictment was like the one at bar, and the ruling of the court in that ease sustains my position. See also 7 Mo. 55; 37 Ib. 373; 44 N. H. 624; 9 Grat, 727; 29 Maine, 324; 2 Carter, 91; 1 Hale’s Cr. L. 531; 2 Earl’s Cr. Law, 741; 2 Leach Pl. of the Crown, 718-720. Many of the authorities upon this point cited by the gentleman upon the pther side in support of his position, upon a careful examination, will be found to furnish no such support. Among the 1st may be selected the case of Regina v. Brettle, 1 Car. & Marshman, 608; People v. Warren, 1 Parker C. C. 338; The King v. Pedly, 1 L. Pl. Cr. 242; Price v. State, 19 Ohio, 423. An examination of each will be found to disclose the fact that the ground upon-which the plea was held bad, was the same as that in Vunder Comb’s case, to wit., that the indictment in the first instance, in charging the transaction out of which grew the offense, omitted some one or more material elements in the-description of the transaction, in consequence of which,, under that indictment, there "could be no conviction, aud hence no jeopardy.
    It is insisted that our statute defiuing petit larceny has. changed the rule of law governing this classof cases. I think this is an unwarranted assumption.. The state, in the criminal statutes, enters into no partnership, or system of profit or speculation, with any of her citizens, nor allows or intends-them to do so one with another, through the agency of these statutes. Her penalties are for the violation of law for offenses against the peace and dignity of the sovereign, and whatever penalties she imposes-must be regarded and treated as punishment visited Upon the violator of such law, not with a view to a profitable exit to him upon whom the-act of such violation chances to fall.
    If the.legislature, as was done in Massachusetts, had used, language implying a separate judgment in case a question of ownership between different parties should arise, there might have been some difficulty in this question. But our statute^ requires no separate judgment, and regarding the order as to restitution as a part of the punishment ordained by the state and not as a mode of making compensation to the-party injured, the judge pronouncing sentence may order-payment of one sum to A. and another to B., in addition to imprisonment in a proper case, with as little embarrassment as when he prescribes a fine, imprisonment, and feeding on bread and water only, for one offense.
    I ask the court to look at the argument for the prisoner in State v. Thurston, 2 McMullen, (S. C.) 382.
   Stone, J.

The objection taken by defendant’s attorney to the evidence offered on behalf of the state, and the ruling of the court thereon, proceed upon the concession that the goods charged in the second count of the indictment to have been stolen, were all taken at the same time, and that the taking thereof, although they were the property of different persons, constituted, in fact, but one transaction. This the attorney for the state offered at the time to prove, and such was the legal effect of the allegations of the second count of the indictment, under which the testimony was offered. In sustaining the objection, and requiring the prosecutor to treat the charge of stealing the property of each alleged owner as being necessarily, in law, charges of separate and distinct offenses, we think the court erred.

The particular ownership of the property which is the subject of a larceny, does not fall within the definition and is not of the essence of the crime. The gist of the offense consists in feloniously taking the property of another ; and neither the legal nor the moral quality of the act is at all 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 persons. The particular ownership of the property is charged in the indictment, not to give character to the act of taking, but merely by way of description of the particular offense.

It is urged, in support of the ruling of the court below, that whatever might otherwise be the law upon this subject, the taking, in such case, of the property of each owner must, under our statute, be held to be a separate and distinct offense; for the reason that the accused, in case he is convicted, and the value of the property taken is found to be less than thirty-five dollars, may be required, as a part of the sentence, “to make restitution to the party injured in twofold the value of the property stolen.” This position finds some countenance in the remarks of Sedgwick, J., in Commonwealth v. Andrew, 2 Mass. 409. The question, however, did not arise in that case, and was not determined.

The argument rests upon the assumption that an order of restitution can be made in a particular case in favor of one party only, and hence the conclusion is reached that this provision of the statute can only be complied with by treating the larceny of the goods of each owner as necessarily a separate and distinct offense.

The assumption seems to us to- be founded in a misconception of the nature of the prosecution and of the relation to it of the party injured. The prosecution is conducted in the name and by the authority of the state, and the paramount object is the punishment of the offender. The party injured may be incidentally benefited as the result of a conviction, but he is in no sense a party to the proceeding.

The only parties upon the record, and the only parties' in fact, are the state upon the one side and the accused .upon the other. When, therefore, the subject of a particular larceny is the property of different persons, and is found to be of the aggregate value of less than thirty-five dollars, we see no reason why the jury may not, properly, be required to return the value of the property belonging to each, as well as the aggregate value of the whole, or why, such return being made, orders of restitution in favor of the several owners, may not be made conformably thereto.

Being of the opinion that the court below erred in the rulings complained of, we state the following as the rule of law, which, in our judgment, ought to govern similar cases which may now be pending or which may hereafter arise.

Where several articles of property are stolen at the same time, the transaction being the same, the whole, although, they belong to different owners, may be embraced in one count of the indictment, and the taking thereof charged as one offense.  