19 Mo. 249 | Mo. | 1853
delivered the opinion of the court.
The defendant was indicted at the January term, 1853, of the Criminal Court of St. Louis county, for grand larceny. At the March term following, he was tried and found guilty, and his punishment assessed at two years imprisonment in the state penitentiary. He moved for a new trial, which was overruled, and he excepted. He also moved in arrest of judgment, which being overruled, he likewise excepted to that, and brought the case here by appeal.
The testimony preserved in the bill of exceptions shows that the money charged to have been stolen was the property of William Eatherton, as charged in the indictment; that Eatherton, on the Friday before last Christmas, was trading in a store in St. Louis county, purchasing some articles ; that he laid his purse down on the counter, and went out of the store, and in a few minutes felt his pockets and found that he had lost his purse. He returned to the store and ascertained which way the defendant started; and he, the said Eatherton, and a neighbor or two of his, put off after the defendant; that when he was trading in the store and had his purse, the defendant was pre
The court instructed the jury that, if they believed from the evidence, that the defendant, either by himself, or with others, did steal, take and carry away the money of the defendant, as charged in the indictment, and that the value of said money so stolen was of the value of ten dollars or upwards, and that the defendant, either by himself or with others, stole the money, with the intent to convert it to his own use, and that he did so steal within three years next before the finding of this indict
Without the jury believe from the evidence, that the defendant took the money with the intent to steal it, or aided and abetted any other person or persons, with the intent to steal, they will find the defendant not guilty. The court also instructed the jury about the time of imprisonment for grand larceny, and about the reasonable doubt, which instructions are thought not necessary to be noticed.
The defendant excepted to the instructions given by the court, and moved for the following :
“ If the jury believe that the money was lost, and found by the defendant, they cannot find the defendant guilty, unless the evidence satisfies them that the defendant knew to whom the money belonged, or that the purse or vessel containing the money was so marked, obviously and clearly to show to whom ■ the money belonged.” The court gave this instruction, but added the following : “ But if the jury believe from the evidence, that the money was left on the counter, and the defendant knew it, and that he took the money, or aided any other person or persons in taking it, with the intent to steal it, in that case you will find the defendant guilty.”
The court refused the following instructions :
“ If the money was lost and found by the defendant, the jury cannot find him guilty, unless they are satisfied, beyond a rational doubt, that, at the time he converted the money to his own use, he knew to whom the money belonged. If the defendant did not know to whom it belonged, at the time ho converted it to his own use, the jury must acquit.”
“ The fact that the money was found in the possession of the defendant, will not of itself be sufficient to sustain the charge of a felonious taking, so that the defendant can be found guilty of larceny.”
The defendant excepted to the refusal to give these instructions to the jury.
The instructions put the law of the case very fairly before the jury, especially the one asked by defendant’s counsel, and given with an additional explanation by the court, and the court did very right to reject the other two. Instructions should be always based upon the facts and the law arising thereon in every case, and should be so drawn as to assist the jury in forming a just and proper conclusion upon the evidence before them.
It will not always answer to give instructions, though drawn in the very phraseology of judicial determination. Instrue
The eases cited by the defendant’s counsel, differ, in facts, from the one now before us. The cases of the People v. Anderson, 14 John. 294, and People v. Cogdell, 1 Hill, 94, and the eases in Yerger are cited and commented on by this court, in the case of the State v. Conway et al., last term. The doctrine of the Tennessee courts is repudiated. The cases of The People v. McGarren, 17 Wend. 460 ; Regina v. Peters, 1 Carring. & Kir. 47 Eng. Com. L. R. 245 ; State v. Ferguson, 2 McMullan, 502 ; Regina v. Rebecca Kerr, 8 Car. & Payne, 176, (34 Eng. Com. L. R. 341;) State v. Weston et al., 3 Conn. 527, are authorities bearing directly on the case now before us, and are strong against the position taken by defendant’s counsel, and in favor of the ruling of the court below.
The case in Wendell is similar to this : the defendant, MeUarren, was indicted for petit larceny, in stealing a whip worth two dollars, thp property of one Stephen Northrop. The defendant was a merchant in Utica, and Northrop came to his store to buy cloth. After spending some time in looking at cloths, he went off without making a purchase, leaving his whip in the store, rnd the defendant concealed it. Within a few minutes, Northrop returned and enquired for it, and was told by the defendant that he had not seen it. Northrop returned repeatedly during the day, and always received the same answer. It was given in evidence that, when Northrop left the store, defendant expressed his dissatisfaction that he had not made a purchase, but obse^yed, he has left his whip and I will keep it, and, accordingly, put it away ; that previous to Northrop’s return, the last time, the defendant had found out that he had purchased cloth elsewhere, and he then told Northrop, if he had bought the cloth of him, he would not have lost his whip. It was also in proof that, after Northrop left, the last time, the