State v. Austin

• Citation: 113 Mo. 538,21 S.W. 31
• Parties: STATE v. AUSTIN.
• Decision Date: 31 January 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 31

113 Mo. 538

STATE v. AUSTIN.

Supreme Court of Missouri, Division No. 2.

January 31, 1893.

LARCENY — INDICTMENT — SECOND OFFENSE — CREDIBILITY OF WITNESS — EVIDENCE.

1. Rev. St. 1889, § 3959, provides that, if a person convicted of any offense punishable by imprisonment in the penitentiary "shall be discharged" on pardon or on compliance with the sentence, and shall be convicted of any offense committed after pardon or discharge, and if such subsequent offense be such that on a first conviction the offender would be punishable by imprisonment for a limited term of years, he shall be punished by imprisonment for the longest term prescribed upon a conviction of such first offense. Held, that an indictment charging that defendant was convicted of grand larceny, and sentenced for a term of two years in the penitentiary, and that "he complied with said sentence," and that afterwards he stole a horse, the property of J., was insufficient, in that it fails to aver that defendant was "discharged;" the mere averment that defendant "complied with his sentence" being insufficient.

2. The indictment is further defective as charging that defendant was sentenced for two years from December 9, 1889, that he complied with his sentence, and that he committed the larceny charged in July, 1891, in that from the face of the indictment it appears impossible that defendant could have committed such larceny.

3. An instruction that a defendant in a criminal trial is a competent witness in his own behalf, and his evidence should not be discarded for the sole reason that he is the defendant, but that the jury are to take that fact into consideration in determining the credit to be given his testimony; that they are the sole judges of the credibility of witnesses; and that, if they believe a witness testified falsely to any material fact, they may disregard the whole or any part of his testimony, — is erroneous, as telling the jury by implication that defendant's testimony should be discarded on some ground, but not alone because he is a defendant on trial.

4. Rev. St. § 7249, provides that the warden shall keep a journal, in which he shall enter regularly the reception and discharge or pardon of prisoners. Section 7273 provides that any convict who shall serve three fourths of the time of his sentence in an orderly manner, and without infraction of the prison rules, shall be discharged as though he had served the full time of his sentence, and no pardon from the governor shall be required. Held, that a certificate of discharge of defendant by the warden of the penitentiary was properly admitted in evidence, to show that he was discharged after serving three fourths of his time.

Appeal from circuit court, Lincoln county; E. M. Hughes, Judge.

Stephen F. Austin was convicted of grand larceny, and from such judgment, and from orders overruling motions for a new trial and in arrest of judgment, he appeals. Reversed.

Robt. L. Sutton, for appellant. John M. Wood, Atty. Gen., for the State.

GANTT, J.

The defendant was indicted at September term, 1891, of Lincoln circuit court for grand larceny of a horse, the property of Jonathan Dodson. The indictment is as follows: "The grand jurors for the state of Missouri, duly impaneled, sworn, and charged to inquire within and for the body of the county of Lincoln and state of Missouri, do upon their oaths charge and present that Stephen F. Austin was charged and convicted of the offense of grand larceny on the 9th day of December, A. D. 1889, at the September adjourned term of the circuit court of Lincoln county, Missouri, in the year 1889, and that the said Stephen F. Austin was sentenced by the said court on said 9th day of December, A. D. 1889, for a term of two years' imprisonment in the state penitentiary of Missouri, and that the said Stephen F. Austin complied with said sentence, and that afterwards, to wit, on or about the 25th day of July, A. D. 1891, at the said county of Lincoln and state of Missouri, the said Stephen F. Austin did then and there unlawfully and feloniously steal, take, and carry away a certain bay horse, the same being the property of Jonathan Dodson, against the peace and dignity of the state." The defendant was arraigned, and entered his plea, "Not guilty." He was convicted, and sentenced for a term of seven years. Motion for a new trial and in arrest were duly made and overruled.

1. The defendant has been permitted to prosecute his appeal as a poor person, but he was fortunate enough to secure the assistance of counsel, who has presented his case in an excellent brief. The motion in arrest challenges the sufficiency of the indictment. This prosecution is under section 3959, Rev. St. 1889, which provides: "If any person convicted of any offense punishable by imprisonment in the penitentiary, or of petit larceny, or of any attempt to commit an...