Norton v. State

Citation4 Mo. 461
PartiesNORTON v. THE STATE
Decision Date31 October 1836
CourtUnited States State Supreme Court of Missouri

RESQUE, for Plaintiff in Error. Two questions present themselves in this case. 1. Does the evidence amount to the crime of larcency, and justify a conviction under the first instruction of the court? or does it show a mere breach of trust? 2. Is the second instruction given by the court below warranted by law? 1st, larceny is defined by most writers on criminal law to be “the felonious taking, stealing and carrying away of the personal goods of another.” A felonious intent, is the very gist or essence of the crime of larceny, and must exist at the very moment the party gets possession of the property. “The felonious intent is essential to the offense; and in order to make it felony, the intent to steal ought to be at the time when the party first gets possession of the goods.” 2 East's P. C. 655. In the case of John Pear--2 East's P. C. 688, Ashurst, Judge, says that “whenever there is a real and bona fide contract and delivery, and afterwards the goods are converted to the party's own use, that is not felony.” “If A. delivers a horse to B. to ride to D. and return, and he rides away animo furandi, this is no felony--the like of other goods.” Co. P. C. 107, Butler's case; 1 Hale P. C. 504. For aught appears to the contrary, there was a bona fide contract for hire, between the plaintiff in error and the owner of the horse, by virtue of which the horse was delivered. That delivery vested in the said Norton a special property in the horse and left the reversionary interest in Gordon, which differs from a mere custody, when the legal possession is not changed: a conversion of the goods with a felonious intention, in the latter case would be larceny, in the former nothing more than a mere breach of trust. As the evidence shows a bona fide hiring the conviction is wrong. See 1 Hale's P. C. 504, 506 and 508; 2 East's P. C. 552, 685-6, 7, 655. 2. Is the second instruction given by the court below warranted by law? See Archbold's Crim. Pl. 187; 2 Russell on Crimes, 132 and 441; and 2 East's P. C. 655.

BIRD, for the State. 1. It will be insisted that the jury found according to the law and evidence. 2. That the first instruction of the court was right. 3. That if the second instruction was wrong, there was no evidence in the cause to which the jury could apply this instruction, and therefore the jury could not be misled by it. And the court ought not to disturb the judgment below, when it is evident the jury found right, merely because the court erred in giving an opinion which had no application to the case. That first instruction was right, see Rex v. Pear, Rex v. Charlewood, and Rex v. Simple, 12 Petersdorff's Com. Law, p. 58, 59, side pages. As to second instruction, see Strother v. Lucas, 4 Peter's Rep.

MCGIRK, J.

Norton was indicted for horse-stealing, in the Circuit Court of St. Louis county. A verdict was found against him, and judgment thereon; and he brought the case here by a writ of error On the trial, the prosecution gave in evidence, that in the city of St. Louis, one Gordon kept a livery stable. That on the 19th or 20th of March, 1836, Norton came to the stable of Gordon, the witness, on Friday and hired of him a horse, saddle and bridle, to go to St. Charles on the next day and to return the next day. That on Saturday, Norton came to the stable and got the horse and started off on the horse; and that Norton never returned the horse nor came back to give any account of the same. That about the first of July afterwards, about night, some three weeks before the trial, the witness, Gordon, went to his boarding house and sat down, and Norton came in, walked by and ran nearly over witness: had on entirely different clothes then, from those he had on when he got the horse: had on double glass spectacles, and that witness did not then know him to be the same man. That when Norton got the horse, he said his name was Spencer Norton. That witness and an officer went next morning after Norton to arrest him, they found him at what is called the upper ferry. That he denied that his name was Spencer Norton, but said his name was Thomas Anderson. On the trial, the prisoner admitted that his name was Spencer Norton, and that he had hired the horse of Gordon. On this state of testimony, the Circuit Court gave two instructions: no objection is made to the first, the last was excepted to and is as follows: “If the jury shall be of opinion that there was a...

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9 cases
  • State v. Russell, 43913
    • United States
    • United States State Supreme Court of Missouri
    • February 8, 1954
    ...prescribed by law for stealing property * * *.' The quoted provisions are much broader than Sec. 30, p. 288, Laws 1825. Norton v. State, 1836, 4 Mo. 461, 464, dealt with then Sec. 42, p. 179, R.S. 1835 (the forerunner of Sec. 560.260), reading similar to Sec. 560.260, viz.: 'If any carrier,......
  • Wallis v. State
    • United States
    • Supreme Court of Arkansas
    • June 27, 1891
    ...but the court said: "In our opinion, the legislature intended to make it larceny in all bailees to embezzle and convert goods," etc. Norton v. State, 4 Mo. 461. The of Appeals of that State, an intermediate tribunal but one of great learning, subsequently approved this construction of the a......
  • Tally v. State
    • United States
    • Supreme Court of Arkansas
    • September 30, 1912
    ...... the statute was not confined to bailees of the generic class. of carriers, but embraced all bailees. In thus construing it. our court adopted the construction of the Supreme Court of. Missouri upon a statute of which ours is a substantial copy. The Supreme Court of Missouri, in Norton v. State, 4 Mo. 461, construing the statute said:. "In our opinion, the Legislature intended to make it. larceny in all bailees to embezzle and convert goods,". etc. . .          Our. court, speaking through Justice HEMINGWAY, after quoting the. above from the Missouri Supreme ......
  • Faggard v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • November 15, 1909
    ...by the Supreme Court of Arkansas, in the case of Wallis v. State, 54 Ark. 611, 16 S.W. 821, quoting with approval the case of Norton v. State, 4 Mo. 461, construed this statute before it was adopted in Arkansas. The court in that case held that the section applied to all bailees, that the w......
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