For stealing a bay mare in Dent county, the property of Lizzie Sankеy, 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 stolе the mare in Dent county, and rode her off into Phelps county wherе 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 оpinion, 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 leavе 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 exсepted 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 mаre loose, and she took the back track, and that he had no intention of permanently depriving the owner of the mare of hеr property; that he took the. mare Friday night at ten o’cloсk, and turned her loose on the following morning (Saturday) between 2 and 3 о’clock, and that she turned 'and started homeward; but on this point he is сontradicted 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 thеft, 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 chаrged 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 swеar positively that the mare was the same. [State v. Babb, 76 Mo. loс. cit. 504 et seq.]
Nor does it matter that Granger’s testimony was not strictly in rebuttаl. Such things are largely within the discretion of the court, and unless such discrеtion be manifestly abused, no ground for reversal arises. [State v. Smith,
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 thrеe answers to this anomalous position. The first, that no exceрtion was saved to the failure of the court to instruct upon all quеstions of law, etc., conceding for argument that there was such failure. [State v. Cantlin,
Finally, under frequent decisions of this court it has beеn ruled not to be necessary to define the words feloniously, etc., in an instruction. [State v. Cantlin, supra; State v. Scott,
These views affirm the judgment.