The defendants were indicted in the circuit court of Douglas county, and charged with having committed larceny from a dwelling. Upon being arraigned, defendant, Henry Phelps, was granted a severance,' and on being tried was convicted and sentenced to imprisonment in the penitentiary for two years, from which judgment of conviction he has appealed to this court.
On the trial, the state proved the following facts : That, on the twenty-eighth of August, 1886, in the absence of the family, two, dresses and one basque were stolen from the dwelling-house of David Thompson, in Douglas county; that, on the same day, Henry Phelps was seen with a woman, three-fourths of a mile north of Thompson’s, coming along the public road from the north, and, after getting water from the spring, they went back north; they were both riding one horse; this was about one o’clock in the afternoon; the next day, between nine and ten o’clock, a. m., the tracks of a man and horse were seen at Squire’s store, one and one-fourth miles south of Thompson’s, going south;
The state then introduced Hart to show that, on the twenty-first or twenty-second of September, he found the other stolen dress and basque, with another skirt wrapped in a bundle, hid in a thicket in his field, about eighty or a hundred yards east of his house, about sixty yards from his spring, but not in' the' direction from which Delilah came; that being wet they unfolded and hung them out to dry. To this evidence defendant objected for irrelevancy and incompetency, and because witness’ name was not indorsed on the indictment and defendant had no knowledge that he was to be sworn. But the objection was overruled and defendant saved his exception at the time. This was all the testimony connecting Henry with the larceny. The objection that witness, Hart, should not have been allowed to testify because his name was not indorsed on the indictment was properly overruled, it being expressly provided by section 1802, Revised Statutes, that other witnesses than those whose names are thus endorsed may be examined by the state, and it is so held in the case of State v. O’Day, 89 Mo. 559.
The objection that Hart’s evidence was incompetent and irrelevant was, in view of the other facts in evidence, properly overruled. It had been shown that a part of the stolen goods was found recently after the theft in the possession of defendant’s wife, as he claimed her to be at Hart’s house when she arrived on the first day of September with a bundle of clothing, defendant stopping at Isabella, a place two and a half miles from Hart’s house'; that defendant and his wife were seen in the vicinity of the dwelling from which the clothing was stolen on the day it was stolen; that defendant came to Hart’s house on the third of September, and spent the most of the day with his wife at the spring where she was washing, and sixty yards from where Hart testified
As the evidence tended to show that a part of the stolen goods was found in the possession of defendant’s wife, which he admitted if that could be proven would be good evidence against them, the circumstance that the remainder were found concealed in a place where they had an opportunity to put them was properly allowed to go before the jury to be considered by them in connection with other circumstances in the case. If defendant and his wife, Delilah, as the evidence tends strongly to show, were together when the goods were stolen, participating in the larceny, the possession of the goods by one of them, recently after the theft, is criminat-ing evidence against both; and it was on this theory that the case was tried by the circuit court; and there is no analogy between this case and the case of State v. Wolf, 15 Mo. 168, to which we have been cited. According to these views, the objection made to the action of the court in refusing instructions asked by defendant, to the effect that the jury should disregard all evidence as to the possession of said goods, unless such possession was an actual manual possession by defendant, is not well taken.
The court gave nine instructions on behalf' of the defendant, which it is unnecessary to farther particularize than to say that they were full and fair, and to the effect that unless the jury believed, beyond a reason
No error appearing in the record the judgment is affirmed,