State v. Ballard

• Citation: 16 S.W. 525,104 Mo. 634
• Parties: The State v. Ballard, Appellant
• Decision Date: 02 June 1891
• Court: United States State Supreme Court of Missouri

16 S.W. 525

104 Mo. 634

The State v. Ballard, Appellant

Supreme Court of Missouri, Second Division

June 2, 1891

Appeal from Carter Circuit Court. -- Hon. J. G. Wear, Judge.

Reversed and remanded.

C. D Yancey for appellant.

(1) This is a case of total failure of proof, and for that reason the judgment should be reversed. (2) The court as appears from the record wholly failed to instruct the jury, which was reversible error. State v. Banks, 73 Mo. 568; State v. Palmer, 88 Mo. 592; 10 Mo.App. 111; 16 Mo.App. 556.

John M Wood, Attorney General, for the State.

(1) The court before which the case was tried did not find that the variance, if any, between the description of the cow as described in the indictment and as described in the evidence and between the name of "William Bowman, Sr.," as charged in the indictment, and "William Bowman" as testified by the witness, was material to the merits of the cause or prejudicial to the defense of defendant. The statute governs this, and the variance was immaterial and did not entitle defendant to an acquittal, and does not authorize the reversal of this case. R. S., sec. 4114; State v Baker, 64 Mo. 282; State v. Bibb, 68 Mo. 286; State v. Hammond, 77 Mo. 157; State v. Smith, 80 Mo. 516, and other cases cited. (2) It does not appear from the record that the court wholly failed to instruct the jury as contended by appellant, but it does appear that the instructions were not incorporated in the bill of exceptions and they must, therefore, be presumed to be correct. However, this is not one of the grounds assigned in the motion for a new trial. State v. Reed, 89 Mo. 168; State v. Burk, 89 Mo. 635; State v. Emory, 79 Mo. 461; State v. Preston, 77 Mo. 294. In fact the motion states that the court erred in giving instructions. (3) Really the only point properly saved and assigned in the motion for a new trial is, that the evidence was insufficient to sustain the verdict. The record wholly fails to sustain this contention. The testimony clearly established defendant's guilt, and the judgment should be affirmed.

OPINION

Macfarlane, J.

Defendant was indicted for the larceny of "one red brindle, white, line back cow," the property of William Bowman, Sr.

William Bowman testified that a "red and white spotted, line back cow" was taken away or missed from his cattle on the twenty-third of October, 1885. Henry Detmers, a butcher at Piedmont, testified that in October or November, 1885, he bought between three and five head of cattle from defendant. One was a red and white spotted cow." She was marked in the right ear, standing before the cow. She had been newly marked and had a chain about her horns. Defendant offered to pay Bowman for the cow. Bowman asked him, "Why he wanted to pay for the cow if he had not taken her. He said he wanted to get out of it, and not have the name of it."

Defendant testified that in October, 1885, he sold five head of cattle to Detmers in Piedmont; one was a "red and white pieded cow" he bought from John Martin about the same time.

Defendant did not incorporate in his bill of exceptions the instructions given or refused by the court, and we must presume that no error was committed in its instructions to the jury.

The only question appearing upon the record about which any doubt arises is, whether the evidence was sufficient to justify the conviction. If the proceeding was according to the common law, the variance between the charges in the indictment and the proof offered in their support would have been fatal.

Though it would not be necessary, in an indictment for stealing the domestic animals made by the statute subject of grand larceny, to give specific description of such animals stolen, when such description is given it will not, in proceedings at common law, be treated as surplusage but must be proved substantially as alleged. Wharton Crim. Ev., sec. 146; Benson v. State, 1 Tex. Ct. App. 6; Hubotter v. The State, 32 Tex. 479.

The common law has been greatly modified by section 1820, Revised Statutes, 1879, which provides that variance between the charge in the indictment, and the evidence offered in proof thereof, in the description of any matter or thing whatever therein named or described, ...