32 Mo. 571 | Mo. | 1862
delivered the opinion of the court.
Defendant was indicted in the Linn Circuit Court for feloniously stealing, taking and carrying away two steers, alleged in one count to be the property of one T. W. Rooker; in another count, the property of P. W. Banning; and in a third count, the property of one J. E. Quick.
To this indictment the defendant filed a plea of not guilty, and at the May term, 1862, -was tried and convicted, and his punishment assessed at two years’ imprisonment in the penitentiary.
It appears from the evidence, as preserved in the bill of exceptions, that one Harris had obtained in said court a judgment for about one hundred and ninety dollars against said Dewitt, upon which an execution was issued directed to the sheriff of said county. This execution was placed into the hands of Banning, a deputy sheriff, about the 16th of August, 1860, and he levied it upon the cattle, the subject of the larceny, on the 6th or 7th of September following, as the property of said Dewitt, and placed said cattle in the custody of said Quick for safe keeping. -Quick placed them in his pasture, where they remained about two weeks. They were taken from this pasture in the night-time, and there was proof tending to show that Dewitt was implicated in the taking.
Twenty-six instructions were asked and eighteen given— enough to have utterly confounded any jury of ordinary intelligence. This practice of giving a multiplicity of instructions in cases involving but one or two simple propositions of law, cannot be too strongly condemned. Instead of aiding
In the view taken of this case, it is unnecessary to pass upon those instructions, for upon a careful examination of the evidence we are of the opinion that it does not support the finding of the jury. At the time of the levy of the executiou, the cattle belonged to the defendant, who afterwards found them in the pasture of Quick, and no evidence was given to show that defendant had any knowledge whatever as to the character of Quick’s possession. It was not shown upon the trial that defendant was present when the levy was made, or knew that the cattle had been seized by the sheriff by authority of an execution issued against him. No knowledge of the existence of any execution against him was shown. The State should have shown such knowledge affirmatively, for without it it is impossible to fix upon the defendant a criminal or felonious intent.
Judgment reversed and case remanded for new trial;