State v. Collins, 23305.

CourtUnited States State Supreme Court of Missouri
Citation237 S.W. 516,292 Mo. 102
Docket NumberNo. 23305.,23305.
Decision Date18 February 1922

Appeal from Circuit Court, Pemiscot County; Sterling E. McCarty, Judge.

Walter Collins was convicted of grand larceny, and he appeals. Reversed and remanded.

Defendant, Walter Collins, and one Lonnie Fewell were jointly charged in an information filed in the circuit court of Pemiscot county, Mo., on November 3, 1920, with the crime of grand larceny, in that on the _____ day of July, 1920, at Pemiscot county aforesaid they feloniously stole, took, and carried away a cow, the property of one Charlie Ward, of the value of $50. A severance was granted, and on November 16, 1920, a jury found defendant Collins guilty of grand larceny, and assessed his punishment at imprisonment in the penitentiary for a term of two years, and judgment was rendered accordingly.

The evidence on behalf of the state tends to show substantially the following facts: That Charlie Ward, who lived near Steele in Pemiscot county, Mo., in July, 1920, was the owner of a large short-horned Durham red cow, about six years old; that she disappeared, and was found on the premises of one Sanders, who lived near Holland in said county; that Sanders bought said cow from defendant, Collins; that Ward commenced an action against Sanders to recover possession of said cow, and Sanders turned her over to him; that, after selling the cow to Sanders, the defendant left Missouri, and went to the state of Arkansas, where he remained until his arrest; that said cow was held at one time by Williams, who treated her as a stray, and dehorned her to save his own cattle from injury; that defendant claimed to be the owner of said cow, while in possession of Williams, and urged him to turn over the possession of same to him (defendant); that he threatened to have Williams arrested, if he did not turn over the cow to him; and took her from Williams' possession; that said cow had horns about one foot in length when Williams dehorned her; that she was taken from the possession of Williams in June or July, 1920; that Ward purchased the cow from Tom Trimm, who, with his wife, identified her as the cow he had sold Charlie Ward; that she had some scars on her right side, caused by hauling her on a sled; that this was the same cow Ward got from Sanders; that the value of said cow was $100.

Defendant's Evidence:

The evidence on behalf of defendant tended to show he had been inquiring for a red heifer that had been gone about two years; that the cow in question is the same cow that Lonnie Fewell bought from defendant, Collins; that W. H. Collins, the father of appellant, knew the cow in controversy, and felt pretty certain that he had raised her; that she strayed off about two years before the trial; that he gave this cow to the defendant; that at that time the cow had nice straight horns, but was afterwards dehorned by Williams; that after Ward brought an action of replevin against Sanders to recover the cow defendant's father advised the boys to pay up the cost, and let Ward have the cow; that defendant's folks gave Sanders back his money.

Appellant testified in his own behalf that he knew the cow in question; that she was given to him by his father when she was two years old, past; that she strayed away; that he looked for her, and finally found her in possession of Mr. Williams; that her horns had been cut off; that it was the same cow his father had given him; that he got her from Williams, brought her back home, and contracted to sell her to Lonnie Fewell, after which, he made arrangements to let Sanders have her; that he (defendant) owed Sanders $23.90, and Sanders wanted his money; that appellant had no other way of paying him; that he and Fewell made a trade, whereby appellant let Sanders have the cow, and paid Lonnie Fewell back $15; that at the time he took the cow from Williams he believed her to be the same cow his father gave him; that defendant, on the advice of his father, W. H. Collins, gave Sanders his note for the amount Sanders had paid for the cow, signed by himself, Fewell, and W. H. Collins, secured by a mortgage on a team of mares; that the above note had been paid at the time of trial; that after this settlement defendant worked about one week in said county, and he and Fewell then went to Arkansas, about 30 miles from where they lived, to work; that Ward then swore out a warrant for them, and they were arrested on August 15, 1920. Defendant offered testimony tending to show that Ward, in describing his cow to witnesses, said she had one long horn and a "slipped" horn; that Williams, who dehorned said cow, said she did not have a "slipped" horn.

The instructions given and refused, as well as the rulings of the court, will be considered, as far as necessary, in the opinion.

Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and he duly appealed from the judgment against him to this court.

Sam J. Corbett and Shelley I. Stiles, both of Caruthersville, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

BAILEY, C. (after stating the facts as above).

I. The information herein charges defendant with grand larceny in stealing Ward's cow, in Pemiscot county, Mo., in July, 1920, and is based on section 3312, B. S. 1919, which reads as follows:

"Every person who shall be convicted of feloniously stealing, taking and carrying away any money, goods, rights in action, or other personal property, or valuable thing whatsoever of the value of thirty dollars or more, or any horse, mare, gelding, colt, filly, ass, mule, hog or meat cattle, belonging to another, shall be deemed guilty of grand larceny; and dogs shall for all the purposes of this chapter be considered personal property."

Appellant contends that a defendant charged with grand larceny under section 3312, supra, cannot be convicted under evidence tending to show a case for the fraudulent conversion of lost property under section 3322, R. S. 1919, which reads as follows:

"Every person who shall convert to his own use, or make way with or secrete with intent to convert to his own use, any money, goods, right in action or other personal property or valuable thing whatsoever, of the value of thirty dollars or more, belonging to another, with intent to defraud the owner, which shall have been lost, and which such person shall not have obtained lawful title thereto, shall be deemed guilty of grand larceny, and shall, upon conviction thereof, be punished by imprisonment in the penitentiary not exceeding five years. If the goods or property so converted be of less than thirty dollars in value, the person so offending shall be deemed guilty of petit larceny."

For the purposes of the case, it may be conceded that appellant's construction of the law as above indicated is correct. State v. Arter, 65 Mo. loc. cit. 655, 656; State v. Gabriel, 88 Mo. ice. cit. 641, 642; State v. Harmon, 106 Mo. loc. cit. 649, 650, 18 S. W. 128. It appears, however, in the briefs of both plaintiff and defendant, that the information is based on section 3312, R. S. 1919, in which defendant is charged with the crime of grand larceny. It is clear from reading instruction 1, given by the court, that the case was submitted to the jury under the provisions of section 3312 aforesaid, and not under the law as declared in section 3322, supra. The case must therefore be disposed of here on the same "theory.

2. It is insisted by appellant that the cow in controversy was lost when taken up by Williams as a stray in. November, 1919; that when he took the cow from Williams in June or July, 1920, if he was guilty of any offense, it was simply one for the fraudulent conversion of lost property under said section 3322.

The fallacy of this contention is disclosed in the able and lucid opinion of Judge Napton in State v. Martin, 28 Mo. loc. cit. 531, 538, where it is said:

"Without undertaking to say how far this doctrine about lost goods is to be taken as it is laid down in the old books, we dismiss any further consideration of it as inapplicable to this case. Whatever may be the law concerning domestic animals, such as horses and cattle, in England, we do not consider the doctrine of the English criminal lawyers concerning lost goods as applicable to domestic animals in Missouri. It is with no propriety, either in view of custom or statutory law, that animals can be called lost goods here simply cause they are outside of the owner's...

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