152 Mo. 76 | Mo. | 1899
At the November term, 1898, of the circuit court of Texas county, the defendant was convicted of grand larceny and his punishment fixed at two years’ imprisonment in the penitentiary. He appeals.
The indictment was against defendant and one Rude Stark. It is as follows: “The grand jurors for the State of Missouri duly impaneled, charged and sworn to inquire within and for the body of the county of Texas and true presentment make, upon their oath present and charge that one Erank Dewitt and Rude Stark, on the 7th day of June, in the year 1897, in the county of Texas aforesaid, did then and there feloniously steal, take and carry away two head of neat cattle, the personal property of one A. O. Street, against the peace and dignity of the State.”
The indictment was fouiid at the November term, 1897. At the term next following, being the April term, 1898, the cause was continued by the State, to the fourteenth day of November, 1898. On November 25, 1898, defendants filed their motion to quash the indictment upon the ground that it is too indefinite and uncertain and does not sufficiently set forth the offense to put the defendants on their trial, and do'e's not sufficiently describe the property stolen.
The motion was overruled.
W. E. Dewitt and Rude Stark, defendants in the above entitled cause being duly sworn, upon their oath say that they can not safely proceed to the trial of said cause at this term of the court on account of the absence of J. O. Davis, Allen Largent, Mary Largent, Mile Stephens, Sarah Jane Stark and Thomas Jordan, who are material and competent witnesses for the defendant; that said witnesses reside at or near Hartshorn postoifi.ee,/Texas county, Missouri; that they believe they can procure the testimony of said witnesses to be used at the trial of said cause at the next term of this court; that they believe they can prove byJ.C. Davis, Thomas Jordan, Jr., and Mile Stephens that defendants’ general reputation in the neighborhood where they were born and have always resided and now live, for truth and veracity, honesty and fair dealing, is good and commendable; that defendants are informed and believe that the State intends to prove the cattle charged to have been stolen were taken from the range, and at about noon on the Yth day of June, 1897, were sold by defendants to one W. E. Trail, at Raymondville, Missouri; that they believe they can prove by said witnesses, Yallis Largent, Mary I/argent and Sarah Jane Stark, that defendants were at Newton Dye’s saw mill at or about half past ten o’clock of that day, and at Yallis Largent’s place of abode at twelve o’clock or a little past of that day, and that it was impossible for any person to have traveled from cither of the places last aforesaid to Raymondville, Missouri, by twelve o’clock or any ways near that time of that day, after they were seen at the places above mentioned, the distance be-ing fifteen or sixteen miles; and they believe all of said facts to be true and are unable to prove said facts by any other witness or witnesses whose testimony can be as readily procured; that said witnesses are not absent by the connivance, procurement or consent of these defendants or either of them; that they caused a subpoena to be issued by the clerk of this court
. The motion was overruled and they saved their exceptions.
The State then dismissed the indictment as to Stark, and the trial was proceeded with as to Dewitt.
The evidence adduced on the trial was about as follows:
A. O. Street testified that in April, 1897, he turned on the range some cattle branded with an “inverted S, about three inches long, on the left hip;” that they ranged partly in Shannon and partly in Texas county; that he heard two head of
Eude Stark testified in substance that he went with defendant to Eaymondville; that they got a couple of yearlings close to Mile Stephens’ in Texas county; that “he (meaning defendant) said they were Street’s” cattle; that they took them to Eaymondville and sold them to Frank Trail for “twelve dollars the best I recollect about it;” that he could not recollect about how long ago it had been; that he “reckons it was June of last year;” that he guessed they got there long about twelve o’clock; that defendant said his name was Southern and he was going to Pulaski county; that he went with defendant and helped drive the cattle; that he was indicted for the same offense; and that he made this statement because of a promise to release him made by one of the State’s attorneys.
Frank Trail testified that he lived at Eaymondville,Texas county, Missouri; that he was somewhat acquainted with defendant (points him out); that defendant came to his house on June 7th, 1897; that he represented himself to be W. J Southers from Summerville; that young Stark was along, but Dewitt did the talking; that defendant “said they were moving and going to Pulaski county and that they had two two-year old cattle and they were branded on the left hip with an inverted S turned wrong side out;” that defendant proposed to sell the cattle; that he (Trail) was not then buying such cattle, but told defendant William Hamilton was; that defendant went up there, came back and said he did not want to drive the cattle further because they drove so slowly so he (Trail) finally bought both of the cattle for twelve dollars;
1. The first question presented for consideration is as to the sufficiency of the indictment, which defendant insists is bad, because of its failure to describe the cattle alleged to have been stolen, and to alleg’e the intent with which they were taken.
The indictment is drawn under section 3535, Revised Statutes 1889, by which it is made a felony for any person to take, steal and carry away any mat cattle belonging to another; the averment in the indictment is in the language of the statute, and described the property alleged to have been stolen as “two head of neat cattle.” When a statute describes the whole offense, as in this case, by which it is made a felony for one person to steal from another neat cattle, and the indictment is in the language of the statute it is sufficient, and need not be more specific. [Tully v. Com., 4 Met. (Mass.) 351; State v. Krueger, 134 Mo. 262.] Kelley in his Criminal Law and Practice, .section 64t, says: “If the animal, as described in the indictment, falls within any of the terms employed in the statute, it will be sufficient, although it might have been better described by some other name, especially where the statutory word is a generic term, including the name used and others in the same general signification, as the words, horse, cattle, sheep, hog, and the like. Therefore, the proof of stealing a gelding will support an indictment for stealing a horse.”
As to the objection that it does not allege the intent with which the cattle were taken, it is sufficient to observe that the statute makes the felonious stealing, taking, and carrying away neat cattle belonging to another grand larceny, and renders it wholly unnecessary to allege any intent to steal, as that word itself jneans “to take and carry away, feloniously; to take without right or leave, and with intent to keep wrongfully” [Webster’s International Dictionary, 1408], so that when the indictment avers that the persons therein named did feloniously steal, take and carry away two head of neat cattle the property of one A. O. Street, it means that they took them without right or leave, and with the intent to keep them, wrongfully.
The indictment is sufficient.
2. It is next claimed that the court -erred in refusing to sustain defendant’s motion for a continuance. No objection is taken to the form of the application, nor to the time of its presentation, but the position of the State is, that its refusal or granting was discretionary with the court, and unless that discretion was abused this court will not interfere. That such is the well established ruling of this court is indisputable, but was there not an abuse of a sound discretion by the court in this case in overruling the motion? The desired evidence was material for the purpose of showing that defendant and Rude Stark were not in Raymondville at the time the cattle were sold to Trail, and therefore could not have been the
3. The sufficiency of the evidence to support the verdict of the jury, there being some substantial evidence tending to show defendant’s guilt, will not be considered by this court.
4. While the State’s first instruction and the action of the court in failing to instruct upon the law of the case are criticised, the criticism seems to be without merit. We are unable to see any objection to the instruction, or wherein the court failed to perform its duty in instructing the jury.
5. Complaint is also made of the action of the court who after the jury had retired to consider of their verdict, and were brought into court for further instructions with respect to the testimony of Rude Stark, defendant alleges, remarked to them instead of instructing them in writing:' “If you believe him, you believe him; and if you don’t believe him you don’t.” We are unwilling to believe that these remarks were intended by the court as instructions or that they were in any sense such. If they were, then of course they should have been in writing. [Section 4208, R. S. 1889.] But in any event, objection should have been made, and exception, saved at the time, and could not be raised for the first time in the motion for a new trial. [State v. De Mosse, 98 Mo. 340; State v. Marshall, 36 Mo. 400; State v. Ray, 53 Mo. 345; State v. Pints, 64 Mo. 317; State v. Williams, 77 Mo. 310; State v. McDonald, 85 Mo. 539.]
Por these considerations we reverse the judgment and remand the cause.