101 Mo. 520 | Mo. | 1890
The defendant, upon his trial in the St. Louis criminal court, upon an indictment for grand larceny, was found guilty, and on the fourth day of January, 1890, was sentenced to two years’ imprison-ment in the penitentiary in accordance with the verdict
The evidence for the state in chief tended to show that on the second of November, 1889, the said Samuels and the defendant were inmates of the city jail of St. Louis, the defendant’s cell being on the first, and Samuels’ on the second, floor; that Samuels was the owner of a light spring overcoat, for which he had paid thirty dollars, when new, about a year and a half before ; that it was in his cell that morning ; that his cell door was open all the afternoon of that day, and that he was out on the promenade or in the rotunda on the first floor until five p. m. ; that about that time he returned to his cell, found his coat gone, and reported his loss to the guards; that, about 4:30 p. m., the defendant’s wife came to the jail, bringing him his supper, and remained at the screen door while the same was taken to her husband’ s cell by one Clark, another prisoner; that while Clark was in the defendant’s cell, Jacobsen and Seigel, two other prisoners, came into defendant’s cell, ‘ ‘ Seigel carrying a bundle in his arms wrapped up in a newspaper,” which he placed on the bunk, Jacobsen saying to defendant, “Send that out for me ;” that defendant, without looking in this package, gave “that and another small package to Clark” who carried them to the screen and passed them out to Mrs. Norman In the basket in which she had brought her husband’s supper ; after the basket was passed out, defendant came to the screen and his wife hallooed-to him saying “ What is this in here? ” and he replied, “It is a bundle of my dirty clothes;” that, directly after, Samuels reported the loss of his overcoat.
One of the guards went to Norman’s house, met his wife on the sidewalk and demanded the package defendant had sent out to her ; she went in the house, brought out the bundle still wrapped up and handed it to him ;
The evidence for the defendant elicited, on cross-examination of the state’s witnesses, and supplemented by his own evidence and witnesses examined in his behalf, tended to prove that Jacobsen and Seigel occupied a cell upon the first floor, and that the coat was taken from Samuels’ cell on the second floor by Jacob-sen to their cell on the lower floor, was by Seigel wrapped up and taken to the defendant’s cell (Jacobsen accompanying him), and that the same was passed out through Clark and the guard at the screen to defendant’s wife, as before stated, to be by her pawned for Jacobsen, the defendant not knowing what the bundle thus passed out contained.
There was no evidence tending to show that defendant took the coat, and the only hypothesis on the evidence which would have authorized a conviction was that he may have been accessory to the theft. Nevertheless, the court instructed as if there was evidence tending to show that the defendant actually took the coat, and gave the following instruction upon the theory of his being accessory to the theft:
“2. If you believe and find from the evidence that the defendant Norman aided or assisted Seigel or Jacob-sen in stealing, taking and carrying away the coat, charged, and if you find he did any act in furtherance of the commission of such larceny, you will find him guilty as charged.”
This instruction assumes that Seigel or Jacobsen stole the coat, but, waiving a legitimate objection to it on this score, it entirely ignores the defense, and instructs the jury that if the defendant by any act, however innocent, aided either of them in the commission of the larceny, they must find him guilty. Under this instruction, the jury finding that the act of defendant, in passing the bundle which Seigel brought to his cell to Clark to be delivered with his own bundle to his wife,
The court also erred in its instruction to find the defendant guilty of grand larceny, or acquit him. The only evidence on the subject of the value of the coat was that Samuels paid thirty dollars for it some eighteen months before it was taken. This evidence tended to prove ■ that this second-hand coat at the time it was taken was worth less than thirty dollars, rather than that it was worth that amount, or more ; but, conceding that this evidence, in connection with the fact that the coat was before the jury, warranted an instruction on grand larceny, it certainly called also for an instruction on petit larceny, to give which, however, the court neglected. Without further discussion of the instruction, it is evident that, for the errors noted, the judgment herein must be reversed, and defendant discharged, and it is accordingly so ordered.
