160 Mo. 469 | Mo. | 1901
At the May term, 1900, of the circuit court of Texas county, the defendant, John W. Earrow and Charles Smith were jointly indicted for grand larceny, which was alleged to have been committed on the twenty-third of March, 1900, in that county.
On the sixteenth day of July, 1900, being the May adjourned term of said court, on motion of defendants named in the indictment, a severance was granted, and on the eighteenth day of July next thereafter, the defendant Maggard having been put upon his trial, was convicted of grand larceny as charged, and his punishment fixed at two years’ imprisonment in the penitentiary. Erom the judgment and sentence he appeals.
The property alleged to have been stolen consisted of overcoats, gloves, grain sacks, and various other goods and chattels belonging to five different persons, to-wit, E. E. Buck, Sidney Purcell, S. R. Townley George Schoonover, Fred Brackett and Henry Smith, all of whom lived in Texas county.
The day before the goods were stolen these 'persons went to Cabool, a station on the Kansas City, Fort Scott & Memphis Railroad in said county, for the purpose of getting some com that was being shipped to them at that place. When they got there they drove into a lot, called by one of the witnesses a “wagon yard,” unhitched their teams, and remained until the following day, when they discovered that certain of their property had been stolen. Buck’s property, or at least a part of it, to-wit, a collar and bridle, and his sacks and com, had been taken by him from his wagon and piled up in a shed. Purcell’s property was in his wagon. 'Smith’s in Keithley’s .shed loft in the wagon yard, and the property of Brackett, Towneley and Schoonover in different places in the wagon yard. When they discovered that their property had been stolen, a warrant was secured for the arrest of John W.
It is claimed by defendant that under the evidence he could only have been convicted of petit larceny, for the reason that the property of the different owners was located in different places at the time it was stolen, and each taking a separate and distinct offense, and as the value of the property taken from any one place did not amount in value to as much as thirty dollars he could not be convicted of grand larceny.
The stealing of different articles of property, belonging to different persons at different times, constitutes different offenses, but where the stealing of different articles of property is at the same time and place so that the transaction is the same it is but one offense, although the property stolen bnay belong to different persons.
In Lorton v. State, 7 Mo. 55, it is said: “The stealing of several articles of property, at the same time and place, undoubtedly constitutes but one offense against the laws, and the circumstance of several ownerships can not increase or mitigate the nature of the offense.” [Wilson v. The State, 45 Texas Reports 76; State v. Morphin, 37 Mo. 373.] The same rule is announced in Nichols v. The Commonwealth, 78 Ky. 180.
But where property belongs to different persons, and is located at different places, as in the case at bar, each asportation with intent to steal, constitutes a different offense, although the thefts may all have been committed in rapid succession, and in pursuance of a formed design to steal.
Defendant asked the court to instruct the jury as follows:
“9. The court instructs the jury that in arriving at the value of the property charged to have been stolen you are not to be governed by the value of the property to the owner, but you will be governed by what the evidence shows said property to have been actually worth on the open market.”
The court refused the instruction as asked, struck out the words at the conclusion of the instruction, “on the open market,” then gave it as amended over the objection and exception of defendant. It is insisted that the action of the court in this regard was error, and that the standard of value was not what the property was worth to its owners, but what it would have brought in open market.
As a general rule the market value of goods stolen, or that for which similar goods are, at the time and place of the theft, commonly in the markets bought and sold, is the standard of value. But where things stolen have no marketable value, for instance, a second-hand coffin (State v. Doepke, 68 Mo. 208), or second-hand clothing (Pratt v. State, 35 Ohio St. 514; Printz v. People, 42 Mich. 144), or brood sows (State v. Walker, 119 Mo. 467), the owner may testify to the actual value of the property regardless of any market value for it. In the case at bar there was no evidence that any of the articles described in the indictment had a marketable value, but all of the evidence was directed to their actual value, hence no error was committed in amending the instruction and in giving it as amended. [State v. Walker, supra.] There was no evidence to authorize it.
