State v. Campbell

108 Mo. 611 | Mo. | 1891

Macfarlane, J.

Defendant was jointly indicted with one E. V. Watson, for the larceny of a cow, the property of Yalentine Rodgers. She was granted a severance, and upon a trial was found guilty and sentenced to imprisonment in the penitentiary for two years, and from the judgment she appealed to this court.

I. Defendant insists, in the first place, that the verdict and sentence were not authorized under the evidence. To this proposition we cannot agree. The evidence shows that the cow strayed away from the owner in the spring of 1889. In November, 1.889, she was taken up and advertised as a stray by Thomas Avis. The next day defendant, who lived within half a mile of Avis, drove the cow into her lot and claimed to be the owner of her. Told Avis and others that she had bought her from a man named Fisher. Only one man of the name of Fisher was introduced as a witness ; he testified that he knew no other man by the name in the county, and he himself had not sold plaintiff the cow. The evidence tended to prove that the cow was in the neighborhood during the summer, and was known to defendant as a stray. The proof of the assertion was unquestioned. There was also evidence tending to prove that defendant had the cow in her exclusive possession prior to taking her from Avis.

From this brief outline of the facts it will readily be seen that the evidence tended to prove every substantive fact necessary to make the crime of grand larceny, and was sufficient to justify the verdict of guilty.

II. The court instructed the jury in substance that if they should believe from the evidence that the defendant, Mrs. A. A. Campbell, within three years before April, 1890, in Barry county, Missouri, stole, took and carried away a cow, the personal property of the witness, Valentine Rodgers, they should find her guilty and assess her punishment at imprisonment in the penitentiary for not less than two, nor more than five, years, and “unless you believe and find that she stole, took and carried away the cow you will find her not guilty.” No instruction was given more specifically defining grand larceny, or the facts necessary to constitute that crime under the evidence.

Defendant asked, and the court refused, instructions to the effect that, unless defendant intended to deprive the owner of his property in the cow, she would not be guilty; and if her possession was in good faith, and under claim of title, she would not be guilty.

Under the circumstances in this case we are of the opinion that the instruction given the jury was too abstract to give them a proper guide under which to determine whether the facts proved constituted grand larceny, The issue was upon the intent with which the cow was taken. The words, “took, stole and carried away,” do not even define grand larceny as particularly as is done by the statute, or as is required, in order to make a sufficient charge in an indictment. The statute uses, and an indictment is required to use, the qualification that the act must have been done with a felonious intent. They should have been told what would .have constituted a felonious taking under the law; the taking must have been without light, and with the intention of converting the cow “to a use, other than that of the owner, without his consent.” Under the guidance of the instructions given it was not necessary in order to have found a verdict of guilty that the taking should have been wrongful or with a felonious intent, except so far as the words, “ steal, také and carry away,” may have implied a felony in the minds of the jurors. State v. Moore, 101 Mo. 320; State v. Gresser, 19 Mo. 248; Witt v. State, 9 Mo. 663; State v. Shermer, 55 Mo. 86; State v. Owen, 78 Mo. 371; State v. Ware, 62 Mo. 597.

Judgment reversed and cause remanded.

All concur.