65 Mo. 84 | Mo. | 1877
The defendant was indicted in the Circuit Court of Lafayette County at its November Term, 1874^ for grand larceny in stealing one gray mare mule, the property of John Haeder. The cause was properly certified and transferred from said court to the Criminal Court of said county, in which court it was tried at the March Term, 1876-, and a verdict of guilty returned, and the punishment assessed at three years’ imprisonment in the penitentiary. Defendant’s motion for a new trial being overruled, he brings the cause to this court by appeal. The errors assigned in the motion are that the court erred in giving improper and refusing to give proper instructions; in admitting illegal and refusing to admit legal evidence ; that the verdict was against the evidence; and that one of the jurors after the trial had said that fifty dollars had been paid by the defence to one Powers or Bowers, a witness in said cause, not to appear and testify, and that said juryman knew this at the time he was acting as juryman in said cause and before a verdict -was rendered.
I. The instructions given and objected to are as follows : 1. “ The court instructs the jury that recent possesS10n sf°len property is in presumption of law guilty possession, and if the jury believe from the evidence that defendant had possession of the mule, alleged in the indictment to have been stolen at the house of one Patrick Lillis recently after the same was stolen, then such possession was guilty and unless explained by the evidence in the case to the- satisfaction of the jury they shall find him guilty as charged.” 2. That though the indictment describes the stolen property as a gray mare mule, and though the evidence m&j show that the stolen property was an iron gray mule or a dark iron gray mare mule, the variance in that particular is immaterial, and if from the evidence the jury believe that the defendant did on or about the 7th day of May, 1874, feloniously take, steal and carry away a dark iron gray mare mule belonging to the said John Haeder, the jury shall find the defendant guilty as charged.” 3. “ In considering what the defendant said the jury must consider it all together. He is entitled to the benefit of what he said for himself if true, as is p^g gtate to the benefit of what he said against himself. In any conversation proved by the State, what he said against himself the law presumes to be true because against himself, but what he said for himself the jury are not bound to believe because said in á conversation proved by the State. They may believe it or disbelieve it as it may be shown to be true or false by the evidence in the case.”
II. The following instructions asked by the defendant were refused : 1. “ That to authorize a conviction in this case it is not sufficient to prove that the gray mule left by the defendant a,t the place of Patrick Lillis resembled the mule of said Haeder, but the jury must believe and find from the evidence that said mules have been identified to be one and the same mule, and unless said mules have been so identified, or if the jury have a reasonable doubt as
III. The first of the above instructions given for the State has been declared to be the law and has been sanctioned by this court in a large number of cases. 27 Mo. 463; 15 Mo. 168, 349; 38 Mo. 372. The second instruction is objected to on the ground that the indictment charges the defendant with stealing a gray mare mule and that the court tells the jury that this charge is supported by proof showing that the mule stolen was an iron
IY. The principle which defendant sought to have declared in the first instruction refused by the court was i. instructions, given in the following instruction : “The court instructs the jury that by the indictment in this cause the defendant is charged with grand larceny in having on the 14th day of May, 1874, feloniously stolen, taken and carried away one gray mare mule, the property of one John Haeder; and before the jury can find the defendant guilty they must believe and find from the evidence that said mule was so stolen; and they must further believe and find from the evidence as above that defendant Willis Hill did so steal, take and carry away said mule, and unless the jury so find they will find defendant not guilty.” The above declaration having been given, the first instruction, containing a repetition of it and also a comment as to the sufficiency of proof, was properly refused. The refusal of the second instruction was rightful' because the court gave the following, correctly stating the law as applied to circumstantial evidence: “ The jury are instructed that they may from circumstantial evidence alone find the defendant guilty when the facts established are inconsistent with any other theory than that of his guilt, but in order to find the defendant guilty upon circumstantial evidence the facts proven must be wholly inconsistent with the innocence of
V. The reason for a new trial based upon the alleged statement of-a juror after the verdict was rendered, that fifty dollars had been paid by the defence to procure the absence of a certain witness in said cause, and that he knew this fact at the time he was acting as a juryman and before a verdict was rendered, disappears in the face of the affidavit of the juror to whom the expression was imputed,, who swears that he had made no such statement and had never heard of such fact until after the verdict was rendered and the jury was discharged. The truth of this matter was investigated by the trial court on affidavits, and no cause is seen to exist for interfering with the discretion of the court in refusing a new trial on this ground. Judgment affirmed.
Affirmed.
