State v. Waller

• Decision Date: 19 May 1903
• Citation: 74 S.W. 842,174 Mo. 518
• Parties: STATE v. WALLER.
• Court: Missouri Supreme Court

74 S.W. 842

174 Mo. 518

STATE v. WALLER.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

GRAND LARCENY — INSTRUCTIONS — CONSENT OF OWNER.

1. An instruction that if the jury believed that defendant "feloniously did steal, take, and carry away any of the property described in the information, * * * without any honest claim thereto, with the intention of converting the same to his own use, or depriving the owner of his property therein, you will find the defendant guilty of grand larceny," etc., was erroneous, for failing to state that the goods must have been taken without the owner's consent.

Appeal from Criminal Court, Jackson County; John W. Wofford, Judge.

Edward B. Waller was convicted of grand larceny, and appeals. Reversed.

Phil D. Clear and J. S. Brooks, for appellant. Edward C. Crow, Sam B. Jeffries, and Jerry M. Jeffries, for the State.

BURGESS, J.

At the April term, 1902, of the criminal court of Jackson county, defendant was convicted of grand larceny, and his punishment fixed at five years' imprisonment in the penitentiary, under an information theretofore presented against him by the prosecuting attorney of said county, charging him with stealing a lot of surgical instruments from one Nelson A. Drake, of the aggregate value of $200. In due time defendant filed a motion for new trial, which was overruled, and he appeals.

Upon the trial defendant took the witness stand, and testified that he stole the articles and sold them to another person, but also testified that they were less than $30 in value. The evidence, however, showed very conclusively that they were worth more than that sum. Defendant also admitted while testifying that at the April term, 1899, of the circuit court of the city of St. Louis, under an indictment for grand larceny, he was convicted and sentenced to the penitentiary for two years. He also admitted committing other larcenies.

The court instructed the jury as follows:

"(1) The court instructs the jury that if you find and believe from the evidence that at Jackson county, state of Missouri, at any time within three years next before the 6th day of January, 1902, the defendant, Edward B. Waller, feloniously did steal, take, and carry away any of the property described in the information in this case, of the value of thirty dollars or more, of the goods and property of Nelson A. Drake, without any honest claim thereto, with the intention of converting the same to his own use, or depriving the owner of his property therein, you will find the defendant guilty of grand larceny, and assess his punishment at imprisonment in the State Penitentiary at not less than two years, and not exceeding five years. `Feloniously,' as used in this instruction, means wickedly and against the admonition of the law; that is, wickedly and unlawfully.

"(2) The court instructs the jury that if they fail to find a verdict according to the law as laid down in instruction No. 1, but shall find and believe from the evidence that at the county of Jackson and state of Missouri, at any time within one year next before the 6th day of January, 1902, the defendant, Edward B. Waller, did unlawfully steal, take, and carry away any of the property described in the information in this case, and that said property was of less value than thirty dollars, of the goods and property of Nelson A. Drake, without any honest claim thereto, with the intention of converting the same to his own use, or depriving the owner of his property therein, you will find the defendant guilty of petit larceny, and assess his punishment at imprisonment in the county jail not more than one year, or by a fine not more than one hundred dollars, or by both such fine and imprisonment.

"(3) If verbal statements of the defendant have been proven in this case, you may take them into consideration, with all the other facts and circumstances proven. What the proof may show you, if anything, that the defendant has said against himself, the law presumes to be true, because against himself; but anything you may believe from the evidence the defendant said in his own behalf, you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered with a view to all the other facts and circumstances in the case.

"(4) The...