212 Mo. 95 | Mo. | 1908
— On April 16th, 1907, the assistant circuit attorney of the city of St. Louis filed an information, duly verified, in the circuit court of said city, charging the defendants with stealing, in the night time, six Plymouth Rock chickens and two white ducks, of the value of seven dollars, all the personal property of Archie Perkins. The defendants, on May 15, 1907, were jointly tried, and-both were convicted, the punishment being assessed at two years in the penitentiary. The court, being satisfied that defendant Eugene McGee was under eighteen years of age, changed his punishment to three years in the training school for boys. After filing a formal motion for a new trial, which was denied, the defendants appealed.
The two defendants testified, denying that they stole Perkins’s chickens, and claiming that the chickens they were eating that Sunday belonged to them. They derned knowing anything about Perkins’s chickens or ducks, or what was their color, and denied that there were any chicken heads near the stable. Both stated
At the close of the State’s case the defendants asked for an instruction in the nature of a demurrer to the evidence, which was refused, and they saved an exception. As grounds for this demurrer, the defendants contended that the only evidence connecting them in any way with the crime charged against them was that in relation to the finding of a chicken in the loft of the stable owned and controlled by the uncle of the defendants, which chicken was identified by the prosecuting witness, Archie Perkins, as one of those stolen.
The prosecuting witness, Archie Perkins, identified the chicken found in the stable loft as his, while both defendants testified that it belonged to them, and these facts, with others in evidence, tended to prove such actual and exclusive possession of the one chicken by the defendants as to justify the submission of the ease to the jury, and, for that matter, to justify the verdict of the jury.
It is next insisted that the court committed error in giving instruction number 3. This instruction merely went to the competency of the defendants as witnesses in their own behalf, and the consideration to be given such testimony by the jury. It is in a form often approved by this court, and free from objection.
Instruction number 6 is claimed to be erroneous and prejudicial to the defendants, and incorrectly states the law. The last sentence of this instruction is as follows:
“If after such conviction, if any, it shall be made
The matter of this part of the instruction was something with which the jury had nothing whatever to do, and was altogether for the court. [State v. Darling, 199 Mo. 168; State v. Townley, 147 Mo. 205.] It could not, however, have been in any way prejudicial to the defendants, or either of them, and the judgment should not he reversed upon the ground of the inapplicability of said part of the instruction to any issue in the case.
Finding no reversible error in the record, the judgment is affirmed.