State v. Castor
| Decision Date | 28 November 1887 |
| Citation | 5 S.W. 906,93 Mo. 242 |
| Parties | The State v. Castor, Appellant |
| Court | Missouri Supreme Court |
Appeal from Daviess Circuit Court. -- Hon. C. H. S. Goodman, Judge.
Reversed.
No brief for appellant.
B. G Boone, Attorney General, for the state.
(1) The indictment is drawn under section 1309, Revised Statutes, and properly charges a larceny from a dwelling-house. Under this section the offence is complete without reference to the value of the property stolen. State v. Kennedy, 88 Mo. 341, and cases cited. (2) The slightest removal, with intent to convert to the taker's own use, is sufficient to constitute a larcenous caption and asportation within the meaning of the statute. State v. Higgins, 88 Mo 354. (3) The instructions given covered every phase of the case presented by the evidence. The defendant saved no exceptions at the time to the admission or exclusion of evidence, and will not be heard to complain. State v Burk, 89 Mo. 635; State v. Reed, 89 Mo. 168; State v. Rockett, 87 Mo. 669. (4) The court holds further, that it is too late to make points as to the admission or rejection of testimony for the first time in the motion for a new trial. State v. Peak, 85 Mo. 190; State v. Burnett, 81 Mo. 119; State v. Williams, 77 Mo. 310; State v. Blan, 69 Mo. 317.
In March, 1884, the defendant hired himself to one Taylor Webb, as a farm-hand, for one hundred and seventy dollars per year, board, washing, and lodging. The house consisted of two rooms, a sitting-room, in which Webb, wife and child slept, and a kitchen, and in the latter the defendant slept. His trunk, a common, cheap affair, with a lock to match, was kept in the family sitting-room. This trunk was easily locked and unlocked by the key of the cupboard, which sometimes was in the cupboard-lock and sometimes lying loose about the house, which stood on a public road and near a church. In the sitting-room, on a stand-table, in a small toy trunk, which was not locked, were kept a gold finger-ring and shirt-studs. In the closet in the same room hung a pair of old half-worn pants, with the bottoms worn off.
On the thirtieth day of May, 1884, Taylor Webb and family went away from home, leaving the house unlocked, the defendant being absent, plowing in his employer's field, a mile distant from the house. On that day, decoration services were held at the church. Late in the afternoon of that day he returned to the house, bringing with him a load of corn, which he was engaged in unloading when Webb and his family returned. On that day, the ring, shirt-studs, and pants were missed from their accustomed places, but what time in the day does not appear. The wife of Webb did the defendant's washing, and twice prior to the thirtieth day of May, put defendant's clothing into his trunk, but not after that date. The trunk of the defendant was left unlocked part of the time and part of the time was kept locked, but was more often kept locked after the thirtieth day of May than before. Darius Webb, a brother of Taylor Webb, lived with the latter during the time mentioned, and some time in July, 1884, he borrowed of the defendant his trunk-key to get into his trunk to procure blacking and brush. After procuring blacking and brush, Darius did not return the key to the defendant, but took it away with him the Sunday evening he got the key, being absent four days. On his return he gave the key to Webb's wife, who returned it to the defendant, out of whose possession it had remained during said period.
Some time after the thirtieth of May, on two occasions, Webb, the employer of the defendant, by permission of the latter, opened his trunk to get his razor to shave with. The latter part of August, 1884, and at night, during the defendant's absence, Webb and wife opened the defendant's trunk with the cupboard-key, and found therein the missing shirt-studs in a collarbox without a cover in the tray of the trunk, and lying loose among some collars in the box; the missing pants among the defendant's clothes in the trunk, and the missing ring in the defendant's socks, one turned over the other, with a handkerchief tied over them. On the next morning, at the request of Webb, his uncle, Smith, and his brother-in-law, Pruert, went to his house, and were present at the examination of the defendant's trunk, Webb having told them that he suspected the defendant of having taken the above-described property; but Webb did not tell them of having made the prior examination. On the same day that this second examination occurred, Webb made affidavit before a justice of the peace, and had a warrant issued for the defendant's arrest. When the defendant was arrested he was at work in the field, and upon the officer arresting him and charging him with the theft, the defendant denied all knowledge of the articles taken, and invited the officer to come with him and examine his trunk; unlocked his trunk for the officer; claimed the shirt-studs as his own, as being a gift from C. B. Marksbury, but expressed surprise at the finding of the other articles, and denied all knowledge of how they could have gotten into his trunk. The ring was worth $ 9.50, the shirt-studs $ 1.75, and the pants $ 1.00.
There was also found in defendant's trunk, at the time it was examined by the officer, a pair of gloves which had been lost by one Patten, who had been at Webb's house in company with other young people about two weeks prior to the time of the arrest. In the defendant's trunk were also found four silk handkerchiefs of different kinds. About the middle of June, prior to the defendant's arrest, a visitor at Webb's house exhibited a handkerchief he had bought, and stated the price of it, whereupon the defendant exhibited two handkerchiefs and gave Webb's wife one, saying they cost him nothing. After the search of the defendant's trunk, Webb, the prosecuting witness, charged that the defendant had in his possession a day-book; this the defendant denied, and permitted the officers to search him, when the book was found in the defendant's hip-pocket. On this, defendant admitted the book (which was about written up, and of no value to any one except Webb) was Webb's, but said he had forgotten he had it, and that in it, lying loose, were some pictures Webb's wife had given him. During the summer, prior to the defendant's arrest, there had been croquet parties at his house, attended by the young people of the neighborhood. The testimony on behalf of the state also showed that the defendant was an industrious and excellent farm-hand while working for his employer, and that the ring belonged to Webb's wife. This, in brief, was the testimony on behalf of the state.
On his own behalf, the defendant testified that his age was twenty-two; that he knew nothing whatever as to how the ring and pants and gloves got into his trunk; that the shirt-studs were his own, obtained from C. B. Marksbury; that, on the thirtieth day of May, 1884, he was not in Webb's house from the time he left there in the morning (when Webb and family were there) to go to work until he returned in the evening after Webb and family had returned; that the handkerchiefs found in his trunk were his own property, two of them having been purchased by him, and the other two given him; that the day-book mentioned he had picked up on the croquet ground on the day previous to its having been found on his person, and that when asked for it had forgotten about having picked it up. By divers other witnesses the defendant established that they had known his general reputation in the neighborhood in which he resided from childhood up to the time of his arrest, and that it had always been good for honesty, fair dealing, truth and veracity.
On the preliminary examination before the magistrate, C. B. Marksbury, since deceased, testified that he had given the shirt-studs in question to the defendant, and that they were the defendant's. This, the evidence, I have here set out, in order to a better understanding of the case, which turns in large part upon the evidence. The defendant was indicted, under section 1309, for larceny from a dwelling-house, and being tried was found guilty, and his punishment fixed at two years in the penitentiary, whereupon he appealed to this court and is out upon bail.
I. The indictment is well enough and sets out the crime therein charged with all appropriate statutory averments, and under said section the value of the property stolen is immaterial.
II. The instructions given for the state are as follows:
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