State v. Brown

• Court: Missouri Supreme Court
• Writing for the Court: SHERWOOD
• Citation: State v. Brown, 75 Mo. 317 (Mo. 1882)
• Decision Date: 30 April 1882
• Parties: THE STATE v. BROWN, Appellant.

75 Mo. 317

THE STATE

v.BROWN, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Jasper Circuit Court.--HON. M. G. MCGREGOR, Judge.

AFFIRMED.

This was an indictment for stealing from the dwelling house of one Cather property alleged to be of the value of $15. The second instruction given on the part of the State was to the effect that if the jury believed that defendant took, stole and carried away of the property mentioned in the indictment of any value whatever, in the dwelling of said Cather, and belonging to said Cather, they should find the defendant guilty of grand larceny. The fourth was as follows: If the jury believe from the evidence that soon after the commission of the offense charged in the indictment any portion of the property taken at the time of the commission of the offense was found in the possession of defendant, such possession is presumptive evidence of defendant's guilt, and if such possession of such stolen property is not satisfactorily explained by defendant, it will be conclusive evidence of his guilt; and the jury are further instructed that it devolves on the defendant to explain such possession.

A. L. Thomas for appellant.

D. H. McIntyre, Attorney General, for the State.

I.

SHERWOOD, C. J.

We will not reverse the judgment because the record does not show that defendant consented to the separation of the jury. It is true that section 1909 of the General Statutes, provides that the court, “with the consent of the prosecuting attorney and the defendant * * may permit the jury to separate, * * except in capital cases.” But that statute nowhere provides that the record shall recite the fact of consent given. In the absence then, of any objection appearing to the separation of the jury, the presumption will be that the necessary consent was given. Such presumptions always attend the acts and doings of courts of general jurisdiction. Since, then, the record is silent on the point, we will presume that the consent of the defendant was duly asked and obtained.

II.

There was no error in giving the second instruction asked on behalf of the State, if there was evidence offered to support the allegation of the indictment that the property was stolen from a dwelling house; for in such cases, the larceny is grand, regardless of the value of the property, and is punishable by imprisonment in the penitentiary not exceeding seven years. R. S. 1879, § 1309; State v. Ramelsburg, 30 Mo. 26.

As the evidence has not been preserved...