130 S.W.2d 511 | Mo. | 1939
Appellant was convicted in the Circuit Court of Butler County of the crime of grand larceny. The jury assessed his punishment at a term of two years in the penitentiary, and he appeals. Error is assigned in: (1) That the information is defective; (2) that the State's main instruction is confusing and misleading; (3) the refusal of an instruction offered by appellant, which submitted the converse of the State's main instruction; (4) failure of the court to instruct on the law of alibi, whether requested or not; (5) in refusing to permit named witnesses to testify as to appellant's reputation for certain traits of character; (6) that the court coerced the jury in arriving at its verdict.
This is a companion case to State v. George Conley (Mo.), 123 S.W.2d 103, and State v. Claud Turner (Mo.),
I. The point that the information is defective for the reason it does not name the owner of the property alleged to have been stolen is not tenable, as a mere reading of the information will disclose. Moreover, Turner, Conley and Green were jointly charged in a separate information with the larceny in question. The information in their case is an exact duplicate of the one in the case at bar, except, of course, as to the name of defendant. On Conley's recent appeal (State v. Conley, supra), the information was considered and discussed at length, and held good. [See, also, State v. Turner (Mo.), supra.]
II. Appellant did not request an instruction on his defense of alibi, nor was one given by the court on its own motion. It is contended that it was the duty of the court to so instruct, whether requested or not. The authorities are to the contrary. [State v. Enochs,
III. The appellant formulated and offered a correct instruction *1076
submitting the converse of the State's main instruction, which the court refused to give. In so doing, the court fell into error. The most recent expression of this court on the subject will be found in State v. Fraley,
IV. Complaint is made that the State's main instruction was confusing and misleading in that it required the jury to find the property alleged to have been stolen was the property of Joe Gardner, *1077 whereas the information charged the same belonged to Joe Gardner and J.S. Hutchison. The proof showed that Hutchison had sold the cow and calf in question to Gardner on the day before the same were stolen from Hutchison's lot, so that Gardner was the sole owner thereof at the time of the larceny. It is not contended that this constituted a fatal variance between the allegations of the charge and the proof offered in support thereof, but merely that the instruction authorizing a verdict of guilt upon a finding of ownership in Gardner alone was confusing and misleading. In view of the remand made necessary for the reason set forth in the last preceding paragraph, there is no necessity for discussing this ground of complaint, as the prosecutor will doubtless cause the information to be amended by alleging ownership in Gardner alone. This is permissible under Section 3508, Revised Statutes 1929 (Sec. 3508, Mo. Stat. Ann., p. 3131), which provides: "Any . . . information may be amended in matter of form or substance at any time . . . before the trial, and on the trial as to all matters of form and variance, at the discretion of the court, when the same can be done without prejudice to the substantial rights of the defendant, on the merits. . . ."
V. Error is assigned in rejecting the accused's offer to show his general reputation for honesty and as being a law-abiding citizen. There is much confusion in the record respecting the rulings which give rise to this particular complaint, as reflected by the following excerpts, which seems to be typical:
"Q. Do you know what his general reputation in that neighborhood where you live and he lives is for being a law-abiding citizen?
Mr. WEBER: We object to that question for the reason it's not in the proper form. The proper foundation hasn't been laid.
"The COURT: Have you any decisions on that. I think the Supreme Court has limited it to truth and veracity.
"Mr. TEDRICK: That is for the purpose of impeaching a witness, but this witness is the defendant. He's charged with theft.
"The COURT: Sustained. You can prove a man's general reputation but you can't prove specific character. I will permit you to prove it but not in the manner — understand the court is permitting you to prove his general reputation for everything but is not permitting you to take it up in broken pieces.
"Mr. TEDRICK: Note our exception. The defendant offers to prove by the witness . . . that he is the president of the State Bank of Poplar Bluff; has known the defendant for forty years, and has lived in the same neighborhood with him for a period of thirty years; he knows the people with whom the defendant associates; that he knows what his general reputation is among those people for honesty and being a law-abiding citizen and that said reputation is good.
"Mr. WEBER: To which we renew our objection. *1078
"The COURT: I will permit them to show his general reputation if they can. I'm sustaining the object to that but I'm not excluding it now, gentlemen.
"Mr. TEDRICK: We except to the ruling of the court.
"The COURT: Time is too valuable to take up each little point at a time.
"Mr. TEDRICK: Is your Honor allowing us to prove his general reputation, his general reputation for what?
"The COURT: All right, you gentlemen are well aware of what the law is."
Wharton, in his work on Criminal Evidence (11 Ed.), Vol. 1, section 330, page 459, observes: "The well-conducted citizen, leading a decent and orderly life, is the unit of strength in the nation, and the reputation that he acquired by observance of the laws, rules and conventions of society rightly afford him a measure of protection in every crisis of life." And so we find the admissibility of evidence of good character of a defendant in a criminal prosecution is a doctrine of universal application. [Wharton's Criminal Evidence, supra; 8 R.C.L., sec. 202, p. 207; State v. Anslinger,
The State concedes that honesty is one of the traits involved in the crime of larceny, here charged, but contends that because the offer included the trait or quality of law-abiding citizenship, it was properly rejected. There are no Missouri cases directly on the point. But in Pine v. State,
And in offenses which are deemed mala prohibita only, as distinguished from such offenses as larceny, the commission of which involves moral obliquity, it is held proper to prove the trait of law-abiding citizenship. In State v. Anslinger, supra, where the charge was that of fraudulent voting, it was held that the "trait of character involved in the charge, . . . was that of an honest and law-abiding citizen." And in State v. Padgett, 117 S.E. 493,
Booker v. State,
The other matters complained of are of such nature that they are not likely to recur upon another trial, and for that reason will not be discussed.
For the errors pointed out, the judgment is reversed, and the cause remanded. All concur. *1080