20 Mo. 55 | Mo. | 1854
delivered the opinion of the court.
I. The record of the proceedings of the Circuit Court in this case shows that the trial was had, and the defendant found guilty of grand larceny, without his having ever pleaded to the indictment or been arraigned in court. Indeed, no issue was presented for trial by the record, as certified to this court. The first time the defendant is mentioned as being in court is after the verdict of guilty has been rendered by the jury. He then is brought up in the custody of the sheriff to hear his sentence. There is such manifest error in the proceedings below, apparent
2. As the case may be again tried, it may not be improper to make our views known upon some points which were raised on .the trial below, so that the decision of the Circuit Court may be conformable thereto hereafter. The testimony of the witness, Wilson,. in relation to the remarks of Mr. Hoss, about “ its being a lie, if any body said he gave directions to catch hogs,” &c., was illegal’. This testimony should have been rejected. Mr. Hoss was himself a competent witness. He might have been summoned and examined. The witness, Wilson, was clearly testifying to what he had heard.
3. The testimony which the defendant offered to produce, showing that he was acting in the employment of another in catching and marking the hogs, was proper, and should have been admitted. It was, indeed, highly proper for him to show how he became engaged in this business of catching and tying hogs. If he was actuated by any request or directions of another to do this deed, thinking that the hogs were the property of such person, and that he had no design or intention to-steal the hogs, it was doing him an injury to reject this testimony.
4. It was the duty of the court to instruct the jury as to the law of the case. The instructions asked by the defendant’s counsel may have been objectionable in their phraseology, but the court should not, therefore, have neglected to give such as the law of the case required.
5. The marking of a hog or the altering of a mark of a hog must, in order to be a felony, be done with intent to steal or convert the same to the use of the person so marking or altering the mark. It is the intention with which the act is dene that gives to it its criminality, and one of the instructions asked by the defendant’s counsel was directed to this point, and should have been given.
The judgment of the Circuit Court is reversed, and the cause remanded, with the concurrence of the other judges.
