516 S.W.2d 49 | Mo. Ct. App. | 1974
Defendant was found guilty of stealing two neat cattle. The jury fixed his punishment at one year’s imprisonment in the county jail and a fine of $500. §§ 560.156, subd. 2, 560.161, subd. 2(3) RSMo 1969, V.A.M.S. He appealed. We reverse and remand.
Defendant, a horse trader of some repute, asseverated to the jury at trial and to others while the matter was under investigation (as they testified in whole or part), that he had traded a horse, saddle and bridle to one L. Harris of Bunker, Missouri, for the two bovines. The court gave the usual definitional, cautionary, and circumstantial evidence instructions, one on the presumption of innocence, and Instruction No. 4 to the effect that the burden was on the state to prove defendant was present at the time and place the averred crime was committed. However, there was no instruction or part of an instruction which undertook to negate defendant’s special negative defense of swap rather than theft. “By ‘special negative defense’ is meant a defense (1) upon which defendant does not carry the burden of proof (. . . honest claim to ownership . . .), (2) supported by enough evidence arising during the whole case to raise a reasonable doubt of defendant’s guilt, and (3) presenting a positive fact or set of circumstances, as distinguished from a bare denial or converse, which, if found, would negate one or more essential elements of an offense (honest claim to ownership, for example) or which would, if found, constitute a legal defense (self-defense, for example) . . . .” Notes on Use, MAI-CR 2.04 p. 2-9 (10-8-73).
In his motion for new trial, defendant claimed the trial court erred in giving Instruction No. 2 (the verdict director) because it failed “to state the defense of defendant that he had purchased the neat cattle in question from another person.” The sole point on appeal is that the court “erred in not instructing the jury as to the defense of Appellant that he had traded for the two calves as required by the Missouri Rules of Criminal Procedure, 26.02.” We detect no incompatibility between the motion and the point which would warrant a ruling (as suggested by the state) that the point has not been saved for appellate review. Neither can we agree with the state’s urging that Instruction No. 4, supra, presented defendant’s defense to the jury.
There is no better or simpler method of resolving the issue in this case than to quote Barrett, C., in State v. Powers, 442 S.W.2d 4, 5-6 (Mo.1969): “In State v. Slusher, 301 Mo. 285, 256 S.W. 817, the appellant was charged with the larceny of a rowboat. He testified that he ‘bought the boat from Bill Rounds at the
In accordance with the foregoing, the judgment is reversed and the cause remanded.
. The case was tried before MAI-CR became effective. Nevertheless, the principles, law and rule relating to instructing on a defendant’s special negative defense were the same then as they are now.