73 Mo. 428 | Mo. | 1881
The defendant was indicted under section 28, 1 Wagner’s Statutes, 457, for a larceny- in a dwelling house. The indictment is in usual form. On trial had, the jury returned this verdict: “ We, the jury, find the defendant guilty of petit larceny, and assess his punishment at. a fine of $100 and imprisonment in the county jail for three months.”
I.
We denied at last term a motion to affirm the judgment in this case, which motion was based on the failure of the defendant to “ prosecute his appeal.” The point is still urged that he yet continues in default in that particular. In civil causes, for failure to assign errors, the appeal may be dismissed or the judgment affirmed. 2 Wag. Stat., p. 1066, § 22. In civil causes also, the statute is express that each party shall “furnish the court with a clear and concise statement of the case and the points intended to ne insisted on in argument.” Ib., 1067, § 81. In civil causes also, the judgment will be affirmed if the appellant fails to prosecute his appeal by filing in this court a perfect transcript, and such transcript be produced here by the
II.
But the judgment cannot be affirmed on the merits. On examination of the record, of which the verdict forms part, we find that the defendant, though indicted for “larceny committed in a dwelling house,” was found guilty, not as charged in the indictment, but merely guilty of “petit larceny,” a totally distinct offense; one which the indictment does not charge. This case does not fall within the purview of section 14, page 513, 1 Wagner’s Statutes, whereby a party indicted for an offense “ consisting of different degrees,” may be found “ not guilty of the offense charged in the indictment,” but “guilty of any degree of such offense inferior to that charged in the indictment, or of any attempt,” etc., because there are no degrees of the offense of “ larceny committed in a dwelling house.” A party accused of such offense is either guilty as charged, or not at all, so far as concerns that particular charge. lie is brought before the court to answer to the specific and statutory charge of “ larceny committed in a dwelling house.” and not for that offense committed otherwise or elsewhere. In short, petit larceny committed outside of a dwelling house is not an offense inferior in degree to larceny committed inside of a dwelling house. The statute
The judgment is reversed and the defendant discharged..