No. 1 | Mo. | May 8, 1900
For stealing a bay mare in Dent county, the property of Lizzie Sankey, defendant was tried, convicted and his punishment assessed at two years in the penitentiary.
The evidence, including defendant’s admission that he took the mare, showed defendant’s guilt beyond question. He stole the mare in Dent county, and rode her off into Phelps county where he was seen using her, and there turned her loose; and she was recovered, a few days afterwards, in the western part of Dent county.
The instructions given on behalf of the State will accompany this opinion, and are such as are usually given. -
Those given at the instance of defendant will also, in like manner, be preserved. They are extremely favorable to defendant, and certainly leave nothing .to be desired in the way of instructions.
Defendant demurred to the evidence offered in behalf of the State, and failing in thus demurring, he excepted and then offered himself as a witness and testified that he took the mare but only for temporary use in order to get home, and having arrived within a few miles of his grandmother’s in Phelps county, he turned the mare loose, and she took the back track, and that he had no intention of permanently depriving the owner of the mare of her property; that he took the. mare Friday night at ten o’clock, and turned her loose on the following morning (Saturday) between 2 and 3 o’clock, and that she turned 'and started homeward; but on this point he is contradicted by witness Granger who states he saw defendant in Phelps county on the mare in question riding through the brush on Monday morning next after the theft, and was within a few feet of him. The defendant’s character for honesty and
It was not necessary that Granger should positively identify the mare he saw defendant on in Phelps county as being the one charged in the indictment to have been stolen; it was sufficient for him to state he believed the mare to have been the same, after stating why he believed the mare he saw was the same, describing points of resemblance, etc. It was not necessary that the witness should swear positively that the mare was the same. [State v. Babb, 76 Mo. loc. cit. 504 et seq.]
Nor does it matter that Granger’s testimony was not strictly in rebuttal. Such things are largely within the discretion of the court, and unless such discretion be manifestly abused, no ground for reversal arises. [State v. Smith, 80 Mo. 516" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/state-v-smith-8007736?utm_source=webapp" opinion_id="8007736">80 Mo. 516; St. Louis v. Foster, 52 Mo. loc. cit. 517; State v. Buchler, 103 Mo. 203" court="Mo." date_filed="1890-10-15" href="https://app.midpage.ai/document/state-v-buchler-8009985?utm_source=webapp" opinion_id="8009985">103 Mo. 203.] Besides, no objection was made that Granger’s testimony was not in rebuttal, until his testimony was almost closed.
It is urged that the court should have instructed the jury on the subject of malicious mischief as defined in section 3586, Revised Statutes 1889. There are three answers to this anomalous position. The first, that no exception was saved to the failure of the court to instruct upon all questions of law, etc., conceding for argument that there was such failure. [State v. Cantlin, 118 Mo. 100" court="Mo." date_filed="1893-11-21" href="https://app.midpage.ai/document/state-v-cantlin-8011067?utm_source=webapp" opinion_id="8011067">118 Mo. 100, and numerous subsequent cases to like effect.] The second, that the offense of malicious mischief is not one of the degrees of larceny, and under the provisions of section 3949, Revised Statutes 1889, it is not permissible to indict a man for one crime and then upon trial to convict him of something wholly different. And third, our Bill of Rights would likewise forbid such a result.
Finally, under frequent decisions of this court it has been ruled not to be necessary to define the words feloniously, etc., in an instruction. [State v. Cantlin, supra; State v. Scott, 109 Mo. 226" court="Mo." date_filed="1891-10-15" href="https://app.midpage.ai/document/state-v-scott-8010435?utm_source=webapp" opinion_id="8010435">109 Mo. 226.]
These views affirm the judgment.