78 Mo. 367 | Mo. | 1883
Lead Opinion
I.
The defendant was indicted in the Livingston circuit court. The indictment contained two counts, the first for larceny, in stealing a mare; the second for feloniously embezzling the same. Upon trial had, the defendant was found guilty on the first count, and not guilty as to the second, and judgment of discharge entered accordingly. For a fatal defect in the first count, the judgment was arrested, and upon another indictment being
The statute provides that a person may be indicted for embezzlement and convicted of larceny, or vice versa; and in either case he is punished according to the fact as found by the verdict, whether the indictment charge embezzlement, or whether it charge larceny. E. S. 1879, § 1652. And the section cited further provides that “ no person so tried for embezzlement or larceny as aforesaid, shall be liable to be afterward prosecuted for larceny or embezzlement upon the same facts.” Had the indictment in this case contained but one count for either larceny or embezzlement, and had there been simply a verdict of acquittal, doubtless under the very terms of the statute no further prosecution could have been maintained for either of such offenses based “ upon the same facts.” But had the indictment contained but one count, and that for embezzlement, and had a trial been had on such count, and the defendant found guilty of larceny, and either expressly or else tacitly, not guilty of embezzlement; no one would question but that if the indictment were held bad on motion in arrest, the defendant could be indicted and tried on an indictment charging larceny alone. And the status of the case is not altered in this regard, because the pleader has seen fit to make his charge bifurcate, instead of making it in but one count, as allowed by the statute.
The verdict in this case on the former'indictment must be taken as a whole, and not in separate parts. It clearly convicts the defendant of larceny, and acquits him of embezzlement, and when a plea of autrefois acquit is pleaded, based on such a verdict, it requires but an inspection of it to see that defendant did not go acquit of the larceny. State v. Bowen, 16 Kas. 475; 1 Bishop Crim. Prac., § 1005 a.
Although the entry announcing the fact of the nolle prosequi as to a former indictment, is somewhat obscure, yet we think it sufficiently plain what indictment was intended to be quashed; and the subsequent action of the court upon the indictment last found, shows what construction that court put upon its own entry of record. We will not intend, except upon the very clearest and most satisfactory record evidence of the fact, that a court would commit or sanction such an egregious blunder as to put a defendant upon his trial with no living indictment whereon to try him.
III.
The last indictment found was a valid and sufficient indictment, and charged that the larcenous act was feloniously done. There is no substantial objection to it.
IV.
No discussion is needed respecting the causes alleged in the last indictment, as to the absence of the defendant from the State, and as to his being a fugitive from justice, because the statute of limitations does not run where, as here, there were successive indictments pending against the defendant for the offense for which he was tried, and here the first indictment was found at the January term, 1880. R. S. 1879, § 1707; State v. Duclos, 35 Mo. 237; State ex rel. v. Primm, 61 Mo. 166; Bishop Stat. Crim., § 262.
V.
The instructions on both sides, taken as a whole, correctly declare the law on the subject of larceny, as applicable to the facts in evidence, and no valid objection can be urged against them. It may not be amiss, however, to say that nine instructions were given on behalf of the State, and three on the part of the defendant, making twelve in all, when the whole law of the case could have been coy
YI.
We have no fault to find with the lower court in permitting the proscuting attorney, after the defendant had testified in chief, to ask him, after cross-examining him to some extent: Is this all you are willing to tell the jury' about this case?” Such words were only equivalent to asking him: “ Have you anything more to tell the jury ?” The defendant volunteered to testify in his own behalf, and had thus testified, and was, therefore, amenable to the usual rules respecting other witnesses, and it was the privilege of the prosecuting attorney by all proper questions and methods to endeavor to elicit the truth.
YII.
Granting that there was error in permitting Evans, the owner of the mare, to relate to the jury the confessions of the defendant as to other similar crimes besides the one for which he was on trial, it is impossible to see how the defendant was in the slightest degree prejudiced thereby; because when on the witness stand he virtually admitted his guilt, admitted that he rode the mare off from Chillicothe where he had boon permitted to go out of the kindness of Evans; and he did not pretend that he ever returned the mare, and there was abundant evidence that he had not, and besides, his own confessions to several other persons than Evans, show his guilt in the clearest possible light. In such circumstances it would be out of the question to reverse the judgment. State v. Patterson, 73 Mo. 695; Rex v. Ball, Russ. & Ry. 132: State v. Emery, 76 Mo. 348; State v. Jennings, 18 Mo. 435.
YHI.
The remarks of the circuit attorney, if improper, are disposed of by the observations made in the case of the State v. Zumbunson, decided at the last term, and by the
Dissenting Opinion
Dissenting. — I am unable to find anything in this record which warrants the statement that the defendant virtually admitted his guilt at the trial. He was charged generally with larceny, and for the reasons given in the opinion of the majority could not be convicted of embezzlement. The indictment was drawn under section 1307, and not under section 1322. Edward A. Evans, the owner of the mare charged to have been stolen, testified that he loaned the mare in question to the defendant, at his request. The defendant testified that Evans tendered the use of the mare to him. The circuit court charged the jury in substance that unless they believed from the testimony that the defendant borrowed the mare with the intent to steal her or to permanently convert her to his own use, they would find him not guilty; and that if they had a reasonable doubt as to whether the defendant conceived the intent to steal the mare before or at the time he got possession of her, they would find him not guilty. It was admitted by the defendant, at the trial, that he rode the horse off, and he did not pretend that he had ever returned her, but neither the fact that he rode the horse off, nor the fact that he did not return her, nor both combined, constituted larceny under the instructions given by the trial court, and approved by this court in the opinion of the majority. The intent to steal the mare when he borrowed her, or accepted the loan of her, as the fact may be, was. necessary to constitute the failure to return the mare, larceny under the indictment
In a note to section 218, 1 Greenleaf’s Evidence, (13 Ed.) on the subject of confessions,it is said: “The evidence must be confined to his confessions in .regard to the particular offense, of which he is indicted. If it relates to another and distinct crime it is inadmissible.” Reg. v. Butler, 2 Car. & Ker. 221. Vide also, State v. Goetz, 34 Mo. 85; State v. Harrold, 38 Mo. 496; State v. Daubert, 42 Mo. 242; State v. Reavis, 71 Mo. 419; State v. Greenwade, 72 Mo. 298; State v. Martin, 74 Mo. 547; State v. Underwood, 75 Mo. 230; State v. Turner, 76 Mo. 351. The decision in State v. Underwood, supra, is correct, for the reason that in that case it was impossible to separate that portion of the conversation of the prisoner relating to the offense with which he was charged, from that portion of the conversation relating to another offense.
The truth of all extrajudicial confessions is a matter for the jury, and not for the court. When incompetent and irrelevant testimony, damaging to the defendant has been admitted, it is not for this court to usurp the province o± the jury, and declare that excluding such incompetent testimony, the other evidence shows the defendant to be guilty. The case of Reg. v. Ball, Russ. & Ry., cited in the opinion of the majority, cannot be accepted as authority to the contrary. That decision was put .expressly upon the ground that there could be no new trial in felony. Chambre, J., said: “ If the case were clearly made out by proper evidence in such a way as to leave no doubt of the guilt of the prisoner in the mind of any reasonable man, they thought that as there could not be a new trial in felony, such a conviction ought not to be set aside because some other evidence had been given which ought not to have
I am of opinion that the judgment of the circuit court should be reversed and the cause remanded, in order that the defendant may be convicted by a jury on legal and competent testimony, before he is punished.
Dissenting Opinion
dissents on the ground that the opinion is in conflict with the State v. Thomas, ante, p. 327; State v. Reavis, 71 Mo. 419; State v. Harrold, 38 Mo. 496, and numerous other cases decided by this court, and not supported by the cases cited.
