State v. Sprague
Decision Date | 09 May 1899 |
Citation | 50 S.W. 901,149 Mo. 409 |
Parties | STATE v. SPRAGUE. |
Court | Missouri Supreme Court |
5. An accomplice testified that accused came to him during the night the larceny was committed, and told him that they had made a raid, and had placed the goods in his store. Witness went with accused to the store, where he found the goods as stated by accused, and they hid them on his premises. The accomplice's wife testified that accused came to their house on the night in question, and went away with her husband, and the goods were found in accomplice's store soon after the commission of the larceny. Held to warrant a conviction.
6. The only evidence of the value of the goods having been that they were worth not less than $40, an instruction on petit larceny was unnecessary.
7. Error in failing to instruct on petit larceny in a prosecution for larceny is waived by failure to except because the charge does not fully cover all questions of law and fact.
8. An instruction that the evidence of an accomplice should be considered with great caution, but, if the jury be satisfied of its truth, they may convict thereon, though uncorroborated, is erroneous in not informing the jury what is meant by corroboration.
9. While a conviction may be had on the uncorroborated testimony of an accomplice, yet his testimony, when not corroborated by a person not implicated in the commission of the offense, as to matters connecting accused with the commission of the crime, should be received with great caution, and the jury ought to be fully satisfied of its truth before convicting accused on it alone.
10. An affidavit that, to affiant's best knowledge and belief, a juror, while deliberating, told the jury, as of his own knowledge, that accused had committed another similar crime, is insufficient to impeach a verdict of guilty.
11. After the jury in a criminal case had agreed, and while waiting to be brought into court to return their verdict, a juror separated from the rest, but after an interval of five minutes he was brought back to the jury room by the sheriff. Held not prejudicial misconduct.
Appeal from circuit court, Dent county; L. B. Woodside, Judge.
Wesley Sprague was convicted of larceny, and he appeals. Reversed.
L. Judson and Wm. P. Elmer, for appellant. The Attorney General and Sam. B. Jeffries, for the State.
Defendant was awarded three years in the penitentiary as and for punishment of larceny of goods, wares, and merchandise of the Dent County Mercantile Company. The indictment, so far as necessary to quote, is the following: A demurrer to the evidence on Jack Sprague's part was held well taken, and the cause proceeded alone against Wesley, the father.
1. The first instruction given at the instance of the state is as follows: Instruction No. 7, also given on behalf of the state, told the jury that: "Although you may not believe and find from the evidence that the defendant broke into and entered the building in question, yet if you find and believe from the evidence that the defendant, Wesley Sprague, on the night of the 9th day of April, 1898, at and in the county of Dent and state of Missouri, did willfully and feloniously take, steal, and carry away any of the goods, wares, and merchandise charged in the indictment, with the intent to convert the same to his own use, and to deprive the owners of the use thereof, and if said goods, wares, and merchandise you may find to have been so taken by defendant, if you find they were so taken by him, were of the value of thirty dollars or more, and were at the time and place aforesaid the property of the Dent County Mercantile Company, a corporation organized under the laws of Missouri, you will find him guilty of larceny, and assess his punishment at imprisonment in the state penitentiary for a term of not less than two nor more than five years." Section 3529, Rev. St. 1889, declares that: "If any person in committing burglary shall also commit a larceny, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment, and, on conviction of such burglary and larceny, shall be punished by imprisonment in the penitentiary, in addition to the punishment hereinbefore prescribed for the burglary, not less than two nor exceeding five years." Section 3535, Id., provides that: "Every person who shall be convicted of feloniously stealing, taking and carrying away any money, goods, right of action, or other personal property or valuable thing whatsoever, of the value of thirty dollars or more, or any horse, mare, gelding, colt, filly, ass, mule or neat cattle, belonging to another, shall be deemed guilty of grand larceny; and dogs shall, for all the purposes of this chapter, be considered personal property." It is asserted that the instructions already quoted are in conflict with each other. But this is a mistake. Under the provisions of section 3529, supra, if both burglary and larceny are committed at the same time, then the value of the property stolen is immaterial. State v. Barker, 64 Mo. 282; State v. Henley, 30 Mo. 509. And it was to meet the provisions of that section that instruction No. 1 was drafted; and it was properly drafted, since the finding of defendant guilty of larceny if the goods stolen were of any value was...
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