State v. Walls

262 Mo. 105 | Mo. | 1914

BEOWN, J.

Convicted of stealing chickens in the nighttime, as denounced by section 4537, Eevised Statutes 1909, and his punishment fixed by a jury at two years- in the penitentiary, defendant appeals.

Defendant and one Glen Zust, his hired hand, were jointly charged with stealing thirty-one chickens from one Sherman Sutton in Macon county, Missouri, in June, 1913.

The conviction, in a large measure, rests 'upon the evidence of Glen Zust, who testified that he went with defendant at about the hour of midnight to a point within oné-eighth of a mile of the home of Sutton, where defendant remained with some sacks while Zust went to Sutton’s henhouse and stole the chickens, one by one, and carried them to defendant, who placed them in sacks and took them to his home. Zust-testified that three separate trips.were made and between twelve and sixteen chickens stolen from Sutton by him and defendant on each trip, and that a few days later defendant took the chickens to the near-by towns of Callao and New Cambria and sold them. Witness Zust further stated that his feelings toward defendant were unkind, because defendant struck him and refused to pay his wages.

Prosecuting witness Sutton testified to missing a good many chickens in June, 1913, and to the further fact that defendant raised no chickens. Two merchants, one from Callao and the other from New Cambria, testified that they bought chickens from defendant in June, 1913, about thirty altogether, and produced some of the checks which were issued in payment for the chickens.

Defendant, testifying in his own behalf, denied the theft, but admitted that he raised no chickens and that he sold chickens as testified to by the merchants. His defense was that he obtained from his father the chickens which he sold in Callao and New Cambria. On this point he was corroborated by the evidence of his father.

In rebuttal, four of defendant’s neighbors testified that his reputation for veracity was bad, and a similar number that his reputation for honesty and fair dealing was likewise bad. Two others testified that they did not know anything derogatory of defendant’s reputation.

The alleged errors relied upon for reversal will be noted in connection with the conclusions we have reached.

OPINION.

Witness: Competency of. I. One of the alleged errors relied upon for reversal is the fact that Grlen Zust, who occupied the position of a co-indictee of defendant, was used as a witness for the State at a time when the charge against him had not been nolprossed. In support of this assignment defendant cites State v. Chyo Chiagk, 92 Mo. 395, and State v. Weaver, 165 Mo. 1, l. c. 12. This assignment is not open to defendant here because no objection was interposed to the incompetency of said witness Znst when he was offered by the State. This precise point was expressly ruled adversely to the insistence of defendant in the case of State v. Crab, 121 Mo. 554, l. c. 563-4. [See, also, State v. Whitsett, 232 Mo. l. c. 526.] As we do not try criminal cases de novo, no objection to the competency of a witness can be considered here which was not raised below at the proper time. If defendant had objected when Zust was offered as a witness the court could have removed his alleged disability by dismissing the charge as to him. [Sec. 5241, R. S. 1909.] It would be grossly unfair to the prosecution to allow the defendant to remain silent when the law required him to speak, and then on appeal permit him to profit by his own nonaction. This assignment is ruled against defendant.

II. Complaint is made against instruction number 1, given on the part of the State, which reads as follows:

Instruction ‘ ‘ Grand larceny, as used in these instructions, is' the unlawfully, wrongfully and feloniously taking of another’s property with the wrongful, fraudulent and felonious intent to deprive the owner thereof and to malee it his own property. ’ ’

This instruction is assailed on the ground that it is not a correct definition of the offense charged against defendant, and is misleading and prejudicial. It is true that the definition of grand larceny contained in said instruction omits the fact that the chickens must have been taken in the nighttime to constitute grand larceny. It is difficult, however, to see how this instruction could have misled the jury, for the reason that the words “grand larceny” do not appear in any other instruction given, in this cause. The instruction under consideration was only intended as a definition or guide to the jury to ascertain the meaning of the words “grand larceny,” which the court evidently thought it would thereafter use in other instructions in this cause, but which words it did not subsequently use, and did not need to use. Therefore, said instruction became meaningless as a guide to the jury in this cause. 'If, under the evidence, there was a controversy or doubt as to whether defendant took the chickens from witness Sutton under some claim of right, then instruction number 1 might have proven harmful, but such an issue is not in the record. Under the evidence defendant either stole the chickens, or he did not get them from Sutton at all.

The third instruction given on the part of the State reads as follows:

“The jury are instructed that if they believe from the evidence beyond a reasonable doubt the defendant, Clarence Walls, either alone or in company with one Zust, did feloniously in the nighttime, on or about the 9th day of June, 1913, take, steal and carry away from the premises of Sherman Sutton, upon which his dwelling house was' situated,-chickens, the property of Sherman Sutton, you will find the defendant guilty as charged and assess his punishment at imprisonment in the penitentiary for a term not exceeding five years nor less than two years, or by fine not exceeding two hundred dollars, or confinement in the county jail not-exceeding two months, or by both such fine and imprisonment. ’ ’

It will be seen that the last-quoted instruction tells the jury that the taking of the chickens must have occurred in the nighttime, and further informs them that such chickens must have been stolen to constitute the crime of which defendant was charged. We, therefore, hold that, when considered with instruction number 3, given in this case, instruction number 1 was a harmless error which was not prejudicial to the defendant upon tlie merits. As no judgment should be reversed for errors that are only technical, we overrule this assignment. [State v. Richmond, 228 Mo. 362, l. c. 365.]

Accomplice. III. Defendant seems to be deeply grieved because he was convicted on the evidence of his accomplice Zust. However, the court gave, the usual cautionary instruction to guide the jury in * *“' * weighing the evidence of an accomplice, and this point is without merit. [State v. Sassaman, 214 Mo. 695, l. c. 729; State v. Bobbitt, 215 Mo. 10, l. c. 41; State v. Shaffer, 253 Mo. l. c. 335.]

IV. Other alleged errors relating to instructions given and refused are assigned by defendant, all of which we have carefully examined and find that they are either not preserved for review in the motion for new trial, or that they are so unimportant as not to merit special mention in our opinion. [State v. Conway, 241 Mo. 271; and State v. Douglas, 258 Mo. 281.]

There being no reversible error in the record we affirm the judgment.

Walher, P. J., concurs; Faris, Jconcurs in result.