223 Mo. 112 | Mo. | 1909
This prosecution was commenced by an information filed by the prosecuting attorney of Pettis county, charging the defendant with larceny from the person of Homer Arnold in the nighttime. Afterwards on April 1, 1907, an amended information was filed charging the defendant with the same offense with the addition of a charge of a former conviction of the same offense, and that she had been imprisoned in the penitentiary and having fully complied with the sentence had been discharged therefrom. After unavailing motions to quash and strike out certain portions of the information, the defendant was duly arraigned and entered her plea of not guilty. She was put upon her trial before a jury duly impaneled and sworn, and found guilty of larceny from the person in the nighttime as charged in the information and her punishment assessed at five years’ imprisonment in the penitentiary. Motions for new trial and in arrest of judgment were duly filed, overruled, and the defend
The testimony on the part of the State tended to establish the truth of the charge of larceny from the person of Homer Arnold in the city of Sedalia on or about January 5, 1907, by the defendant placing her hand in his left hand trousers pocket, abstracting two dollars and some additional change therefrom, and then running away. This occurred about nine o’clock in the night of that day. The records of the circuit court of Pettis county were also introduced in evidence showing a former conviction of the defendant on the charge of grand larceny, and the record of the penitentiary showed that she had complied with the judgment and sentence and had been discharged therefrom.
There was evidence on the part of the defendant tending to show that Arnold did not have the money, and on the part of the defendant herself denying that she took from him the sum of two dollars, or any other amount, but that he gave her fifty cents. The defendant is not represented in this court by counsel, and we are driven to an examination of the record and to her motions for‘new trial and in arrest to discover whether any reversible errors were committed against her.
I. The information is in the usual and often approved form and is entirely sufficient.
The objection to the information on the ground that defendant had not been accorded a preliminary examination was without merit, for the reason that the act securing that privilege to defendant did not go into effect until July 14, 1907.
Equally unavailing is the point that the first information was not formally quashed on the record when the amended information was filed. [Sec. 2522, R. S, 1899; State v. Williams, 191 Mo. l. c. 212.]
Unquestionably the State had the right to plead
II. The first instruction given for the State was defective in not requiring the jury to find that the larceny was committed in Pettis county, but as defendant was not convicted under section 2379, Revised Statute 1899, it could not possibly have prejudiced her rights. [State v. Waters, 144 Mo. 341.]
III. Instruction number 2, given by the court, properly defined the offense of which the defendant was convicted. It required the jury to find all the elements and facts essential to the crime. Instructions 3, 4, 5, 6 and 7 are such as are usually given in criminal prosecution and are in accordance with long approved precedents.
Instructions one and two, requested by the defendant and refused by the court, were in the nature of demurrers and were properly denied, as the evidence tended to prove every material fact necessary to the conviction. The court gave instructions numbered 3, 4 and 7, wherein the jury were instructed that the information was a mere formal accusation and no evidence of guilt, and on the presumption of innocence, an instruction on the credibility of the witnesses, in addition to that which the court had already given of its own motion. Instructions 5 and 6, prayed by the defendant, were properly refused, as the law involved therein had been correctly declared by the court to the jury in their instructions.
As to instruction number 8, the record discloses that this was given'at the instance of the defendant,
IV. The exception based upon tbe remarks of the prosecuting attorney, we think, is without any substantial merit, and, in our opinion, furnishes no ground whatever for the reversal of this judgment. We have been unable to find any error which in the least tends to the prejudice of the 'defendant’s substantial rights. Accordingly the judgment is affirmed.
