106 Mo. 106 | Mo. | 1891
Defendant was indicted in the circuit court of Montgomery county for stealing in the night-time from a railroad car standing on the track of the Wabash railroad, in Montgomery City, in said county, about seven bushels of oats, the property of James R. Hance. Under this indictment he was tried and convicted of grand larceny. There was evidence introduced by the state which tended • to prove that defendant, about eight o’clock at night, stole from a car standing on the track of the Wabash Western railroad about the alleged quantity of oats belonging to James R. Hance. It was shown that no other than the Wabash Western railroad passed through Montgomery county.
The evidence also tended to prove that defendant did not steal any oats from Hance , that he gathered up some oats belonging to Hance from the ground near the car ; and that his character previous to this accusation had been good. The value of the oats was neither alleged in the indictment, nor proved on the trial.
I. In an indictment for larceny it is usual to allege, and prove, the value of the property taken. Where the punishment is, by law, greater or less, according to the value of the article stolen, it is necessary to state the value in order to show to which class the offense belongs ; otherwise, the value becomes immaterial, and need not be averred or proved. 1 Bish. Crim. Proc., secs. 540, 541; 2 Bish. Crim. Proc., sec 713; State v. Daniels, 32 Mo. 558 ; State v. Lawn, 80 Mo. 241.
II. The váriance between the charge in the indictment, that the oats was taken from a car on the track of the Wabash railroad, and the proof, th^t it was taken from a car on the track of the Wabash Western railroad, was not such as could have operated prejudidaily to defendant. It was shown that there was but one railroad in the county, and defendant could not have been misled by reason of the indictment omitting the word “ Western ” from the name. Moreover, objections on account of such variance should, in the first instance, at least, he made to the trial court. “Such variance shall not be deemed grounds for an acquittal of the defendant, unless the court, before which the trial shall be had, shall find that such variance is material to the merits of the case, and prejudicial to the defense of the defendant.” R. S. 1879, sec. 1820; State v. Sharp, 71 Mo. 218; State v. Ballard, 104 Mo. 634.
III. The court properly instructed the jury that if the larceny was in a railroad car, and the oats taken was of any pecuniary value, they should find defendant guilty as charged.
The court also instructed the jury that if the larceny was from the ground near the car defendant would be guilty of petit larceny only. The court assumed in this instruction that the value of the oats was below that necessary to make the offense grand larceny. This instruction was given in defendant’s interest, and was most favorable to him.
In view of the evidence, and the omission to prove the value of the oats, the instruction- was properly
The court also properly instructed the jury that defendant should have the benefit of every reasonable doubt of his guilt, and as to the consideration to be given the evidence of his previous good character.
No error appearing the judgment is affirmed.