State v. Casteel

• Decision Date: 31 July 1873
• Citation: 53 Mo. 124
• Parties: THE STATE OF MISSOURI, Appellant, v. JOSEPH CASTEEL, et al., Respondents.
• Court: Missouri Supreme Court

53 Mo. 124

THE STATE OF MISSOURI, Appellant,

v.JOSEPH CASTEEL, et al., Respondents.

Supreme Court of Missouri.

July Term, 1873.

Appeal from the Camden Circuit Court.

H. Clay Ewing, Attorney General, for Appellant.

An estray is the subject of larceny. (State vs. Martin, 28 Mo. 530.)A. D. Mathews, for respondent.

I. This indictment is not drawn under W. S. 461, § 46, and is bad under W. S. 460, § 45.

II. It is not good as an indictment for simple larceny, because all the material allegations are stated argumentatively. (Bish. Cr. Pr., § 269.)

ADAMS, Judge, delivered the opinion of the court.

This was an indictment for grand larceny. The language of the indictment charging the offense is as follows: “That Joseph Casteel and David B. Casteel, both late of said county, on the 5th day of January, in the year 1870, at the county of Camden aforesaid, did feloniously and wilfully take and convert to their own use a certain stray steer, of the value of fifty dollars, the property of some person to the jurors unknown. They, the said Joseph Casteel, Sr., and David B. Casteel, at the time of such felonious conversion not having posted said stray steer, wherefore, by virtue of the statute in such case made and provided, the jurors aforesaid upon their oath do say, that the said Joseph Casteel, Sr., and David B. Casteel, did feloniously steal, take and carry away the said steer, the property of some person to the jurors unknown, against the peace and dignity of the State.”

The defendants filed a motion to quash the indictment, alleging two grounds of objection--First. That they are charged as converting to their own use a stray that had never been posted -- and second, that the offense is argumentatively charged in the indictment.

The court sustained this motion, and quashed the indictment, and the circuit attorney has brought the case here by appeal.

1. The first ground of objection to the indictment is not tenable. A stray may be the subject of larceny before it is posted. So a party may be guilty of stealing goods and chattels of an unknown person, and it may be so charged in the indictment. (5 Bac. Ab. Index G. p. 316; 2 East. P. C., 651, 781; 1 Chitty's Crim. Law, 212; State vs. Martin, 28 Mo., 530.)

2. Grand larceny consists of “feloniously stealing, taking and carrying away,” money, goods, &c., of the value of two dollars or more, or any cattle &c., belonging to another. (1 W. S. 456, § 25.)

At common law it was essential in charging this offense to use the words ““feloniously” and “stole,” in order to fix the party with a criminal intention. Without these words a trespass would be...