State v. Daniels

32 Mo. 558 | Mo. | 1862

Bat, Judge,

delivered the opinion of the court.

The defendant was indicted in the Greene Circuit Court for feloniously stealing, taking and carrying away one mare and one gelding, the property .of one Bichard W. Bragg. ■ A motion was made to quash the indictment, which being overruled, the defendant was tried, and the jury found him guilty and assessed his punishment at ten years in the penitentiary. The case is brought here by appeal. It is contended by the defendant that the indictment is defective in this: that it charges the defendant with having stolen a mare and gelding, and omits to state the value of the property alleged to have been taken. We see no force in either of the objections. In Lorton v. The State, 7 Mo. 55, this court held that the stealing of several articles of property at the same time and place constitutes but one "offence. This is unquestionably the law. (See 3 Chitty’s Criminal Law, 959.)

The other objection has no application to an indictment of this kind. As a general rule, an indictment for larceny should state the value of the property taken, in order that the record may show whether the charge is grand or petit larceny; but under our statute the stealing of a mare or gelding is made grand larceny without reference to value, and therefore it is not necessary to the validity of the indictment that the value should be stated.

This case will have to be remanded for error in the judgment of the court below. The penalty fixed by law for an offence of this kind is imprisonment in the penitentiary not less than ten years. The jury assessed the punishment at ten years, the minimum. The court, however, in giving judgment upon the finding of the jury, reduced the time to two years. The statute which gives power to the court, in cases of conviction, to reduce the extent or duration of the punishment assessed by a jury, if, in its opinion, the conviction is proper, but the punishment assessed is greater than under the circumstances of the case ought to be inflicted, never contemplated that the court should have power to reduce it below the minimum. The judgment of the court is therefore illegal and unauthorized.

Judgment reversed, and cause remanded for a new trial.