202 Mo. 6 | Mo. | 1907
Defendant was convicted of grand larceny in the circuit court of Christian county and his ■punishment fixed at two years’ imprisonment in the penitentiary, under an information filed by the prosecuting attorney of said county charging him and Keets
The State’s evidence tended to prove that J. P. Vaughan was the owner of a lot of cattle in 1904, which were being herded by one of his employees in Christian county; that this employee became demented and the cattle scattered in various parts of the county. It was something like fifteen months before Mr. Vaughan found the steer and heifer that belonged to him; the steer was worth $35. After making diligent search, Mr. Vaughan found the steer had been at defendant’s place. The defendant stated that his brother John, and son, Keets, had taken the steer away and sold it for $30, and that he, the defendant, would like very well to compromise the case. The State’s evidence further tended to show that this steer was sold to a man named Collins by the brother and son of the defendant, and that the money was collected by them, and a part of it used to pay off a note of the defendant’s at the bank, and the balance taken home and kept in a trunk with the knowledge and consent of defendant. The steer had been running on defendant’s place and with the defendant’s stock for something like fifteen months.
The defendant testified that this steer had been at his place some time, and that it was taken away by his brother and son, and that his brother said it was Joe Vaughan’s steer. The defendant further testified that the morning the steer was taken away, his brother said that it was Vaughan’s rope with which he was leading the steer; defendant further testified that he asked his son how much of the money he had spent and. learned that it was $10, and that the remainder was left in his possession. The defendant admitted that he never notified Mr. Vaughan, or asked him anything whatever about the steer.
Defendant’s first insistence is that the court did not correctly define grand larceny in its instructions. The only instructions given upon this feature of the case are as follows:
“2. Grand larceny, as defined in these instructions, is the wrongfully and fraudulently taking the property of another and converting the same to his own use.
“3. The court instructs the jury that if you find from the evidence that Sam Weatherman, in the county of Christian and State of Missouri, on or about the 1st day of August, 1905, or at any time within three years before the filing of the information, to-wit, August 26, 1905, did wrongfully, fraudulently and feloniously steal, take and carry away a certain steer, the property of Joe Vaughan, with intent to deprive the owner thereof as described in the information, you will find the defendant guilty as charged in the information and assess his punishment at a term in the state penitentiary not less than two years nor more than five years.”
That instruction 2 is erroneous is quite clear, as it omits the chief ingredient of grand larceny, that is, the felonious intent to convert the property to his (defendant’s) own use, without the consent of the owner.
In State v. Gray, 37 Mo. 463, larceny is defined as “the wrongful or fraudulent taking and carrying away of the personal property of another, from any place, with a felonious intent to convert the same to the taker’s use, and make it his own, without the consent of the owner.” This definition has never been challenged, but has been many times approved. [State v. Shermer, 55 Mo. 83; State v. Moore, 101 Mo. 316; State v. Lackland, 136 Mo. 26; State v. Rutherford, 152 Mo. 124; State v. Littrell, 170 Mo. 13.]
The question, then, is as to whether the error in this instruction is cured, or the omission therein supplied, by instruction 3, and whether, if both be read and construed together, as is contended by the State they should be, they correctly present the law of grand larceny. We think not. The latter instruction omits telling the jury, in addition to the other facts required to be found by them before they could find the defend
Keets Weatherman, one of the parties informed against as an accomplice of the defendant, testified in behalf of the State, but the court failed to give the usual cautionary instruction as to such testimony, although the defendant asked the court at the time the instructions were read to the jury to instruct upon all the law of the case. But no intimation was given the court by this motion as to what particular points of law had been neglected or overlooked by the court in its instructions, or upon .which defendant desired instructions. Defendant now insists that the court should have given the usual cautionary instruction upon the testimony of the accomplice. But, in fairness to the court, the defendant, if he desired such an instruction, should have asked for it, or have called the attention of the court to its failure to instruct upon this feature of the case. [State v. Bond, 191 Mo. 555; State v. McCarver, 194 Mo. 717; State v. West, infra, p. 128.]
Because of the erroneous instruction alluded to, the judgment is reversed and the cause remanded.