| Mo. | May 26, 1910
On the 18th of August, 1909, the prosecuting attorney of Carter county filed in the office of the clerk of the circuit court of said county, an information charging the defendant with larceny of a certain roan mare, the property of Steve Southner.
At the September term, 1909, of the said court, the defendant was duly arraigned and entered his plea of not guilty and was put upon his trial before a jury duly impaneled, srworn and charged, and was convicted, and his punishment assessed at three years in the
The Attorney-General makes a point that the bill of exceptions cannot be considered because the same is not properly identified and authenticated. Upon an inspection thereof we think the bill of exceptions is pyoperly authenticated The record proper shows the filing of the same, and while the transcript is in-artistically made up, we are of the opinion that it sufficiently shows that it is the bill of exceptions taken and filed by the defendant in this case in accordance with the orders of the court. *
No question is raised as to the sufficiency of the information or the arraignment or sentence, and the two errors assigned for reversal are that the first instruction given on behalf of the State failed to properly define the crime of larceny, and that there was no evidence to show that the property was taken without the consent of the owner.
The instruction of which the defendant complains is in these words: “If you find and believe from all the facts and circumstances in evidence in this case that this defendant at any time about the 16th day of June, 1909, in Carter county, Missouri, did take, steal and carry away, with the intent to convert to his own use, a mare belonging to Steve Southner, then you should find the defendant guilty as charged, and assess his punishment at imprisonment in the penitentiary for a term not less than two nor more than seven years.”
The learned counsel for the defendant correctly states that an instruction very similar to this was condemned in State v. Waller, 174 Mo. l. c. 520. If the conclusion reached in State v. Waller is adhered to, the judgment must be reversed and the cause remanded. In Waller’s case the instruction was as follows: “The
Upon reconsideration, we are of opinion that instruction was sufficient. This court has on more than one occasion stated that it was not necessary to frame an instruction with the technical precision of an indictment. The office of an instruction is to guide a jury of plain men to a correct understanding of the law of the case.
It has also been observed that it was not wise for a trial court to take an excerpt from a decision of the Supreme Court as an instruction to a jury. Unquestionably this court in State v. Waller, 174 Mo. 518" court="Mo." date_filed="1903-05-19" href="https://app.midpage.ai/document/state-v-waller-8014652?utm_source=webapp" opinion_id="8014652">174 Mo. 518, and State v. Littrell, 170 Mo. 13" court="Mo." date_filed="1902-10-27" href="https://app.midpage.ai/document/state-v-littrell-8014386?utm_source=webapp" opinion_id="8014386">170 Mo. 13, correctly expounded the law, but we think that, in applying it to the instructions in those cases, a too rigid rule was required. We think the instruction in those cases met every requirement of the prior decisions of this court and that the words “without the. consent of the owner” were clearly implied in the words “feloniously did steal, take and carry away” the said personal property. “The word ‘steal’ or ‘stealing’ in a criminal statute when unqualified by the context, signifies a taking which at common law would have been denominated felonious and imports the common law offense of larceny. ’ ’ The American and English Encyclopedia of Law, vol. 23,
For the practical administration of justice we think it must he conceded' that if a jury are told that if they believe from the evidence that the defendant feloniously took, stole and carried away, a horse, the property of “A,” they will understand as lawyers would that the defendant had taken the horse without the consent of the owner, and hence the adding of the phrase “without the consent of the owner,” would1 add nothing to the strength or sense of the instruction. In Hughes v. Territory, 8 Okla. 32, it is said: “An examination of the authorities will show that ‘larceny’ and ‘stealing,’ at common law, had the same meaning,” and such we think is the common understanding. [State v. Schatz, 71 Mo. l. c. 504.] While we are satisfied that the law was properly announced in State v. Waller as to the constituent elements -of larceny, we think a too rigid and technical rule was applied to the instruction and that the instruction sufficiently required the jury to find every element necessary to establish the crime of larceny, without infringing any right of the defendant.
But the first instruction of the court in this case was insufficient in that it did not require the jury to find that defendant feloniously took, stole and carried away the mare mentioned in the information, nor did it require them to find that defendant took, stole and carried away the mare with the felonious intent to convert the same to his own use without the consent of the owner, and therefore we think it falls short of the instruction in the Waller case.
As to the evidence we think it was sufficient to support the verdict. For the error in the instruction the judgment is reversed and the cause remanded.