State v. O'Connell

• Decision Date: 31 May 1898
• Citation: 46 S.W. 175,144 Mo. 387
• Court: Missouri Supreme Court
• Parties: STATE v. O'CONNELL.

46 S.W. 175

144 Mo. 387

STATE v. O'CONNELL.

Supreme Court of Missouri, Division No. 2.

May 31, 1898.

LARCENY — WHAT CONSTITUTES — INDICTMENT — VALUE — OWNERSHIP — VARIANCE.

1. A bank certificate of deposit is made the subject of larceny by Rev. St. 1889, § 3535, making the felonious stealing of any "right of action" of the value of $30 grand larceny.

2. Rev. St. 1889, § 3539, providing that the unsatisfied balance on any bond, etc., or right of action, "shall be deemed prima facie evidence" of its value, states a rule of evidence merely, and does not require an indictment for the larceny thereof to allege the amount due at the time of the taking.

3. An indictment need not allege the separate value of several articles which were collectively the subject of one larceny.

4. Questions of variance must be presented by exceptions to the evidence, where the indictment is sufficient.

5. An indictment for larceny of bailed property may lay ownership in the bailee.

Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

John O'Connell was convicted of grand larceny, and he appealed. Affirmed.

John A. Gernez, for appellant. Edward C. Crow, Atty. Gen., and Sam. B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, P. J.

On the 16th day of November, 1896, Mrs. Callie Hamilton, who resided at No. 1827 Olive street, in the city of St. Louis, while walking on Olive street, between Twenty-Seventh and Twenty-Eighth, about 3:30 o'clock in the afternoon, saw defendant approaching her as if he recognized her, and with his hand extended, as she thought, to speak to her, and shake hands with her, and, thinking he was an acquaintance, she looked up in his face, when he suddenly snatched her purse, and ran away. She at once pursued him, and several men and boys joined in the pursuit, but he escaped. The police department was at once notified, and defendant was arrested, and Mrs. Hamilton positively identified defendant as the thief. She testified that her purse or pocketbook contained, when defendant snatched it, about $16 in cash; a certificate of deposit issued to her by the Mechanics' Bank of St. Louis; 10 shares of stock, of the par value of $1,000, in the Universal Light & Power Company, a corporation organized under the laws of this state; and a ruby, about three or four carats, an old family heirloom, which she had never had valued. The stock she thought, was worth par, as she was not aware it had either appreciated or depreciated, as the corporation was yet a new one. Her husband had paid $1,000 for it. The certificate of deposit was for $250 she had deposited in her own name in the Mechanics' Bank. The stock belonged to her husband. Officer Caudell testified he saw the crowd following the man, and he answered the description of the prisoner, though he could not positively identify the prisoner as the man. Officer Badger, who effected the arrest, testified he was dressed in a brown suit corresponding to that described as worn by the party who stole the purse. John F. Frew, a witness called by defendant, testified as follows: He resided at 412 Garrison avenue, and on the 16th day of November, 1896, he was engaged in the carpenter business at 311 N. Leffingwell street. He remembered the larceny that occurred to Mrs. Hamilton on that day. He was standing in his shop door, and saw a man running across the street, with something in his hand. He thought he was after somebody, and a little boy hollered, and told him to stop him; that he had a lady's pocketbook. He tried to stop him. "I got very close to him. I saw his face a half dozen times. He went north on Twenty-Eighth street from Olive until he got opposite my shop, and then came across the street. He crossed the street, facing me, and ran up the alley. I followed him on up to Garrison avenue, I believe it was, and he got over the fence. The defendant there looks terribly like the man I chased. He looks very much like him. I could not swear that he is the man, but he is built a great deal like him." Mr. Camera, another witness, testified he saw the pursuit, and was of the opinion that the man he saw running was not the prisoner, but he was back in his store, 40 feet from the door. No objections were taken to the instructions of the court, and defendant's counsel concedes they were correct. The contention of defendant is that the indictment and evidence are insufficient to sustain a conviction of grand larceny; and, secondly, that the judgment should be reversed on account of improper remarks made by the prosecuting attorney in misstating the evidence and alluding to the failure of defendant to testify.

1. The indictment charges that the defendant, on the 16th day of November, 1896, at the city of St. Louis, one pocketbook, two tax receipts, twenty-seven dollars and fifty cents lawful money of the United States, one ruby stone, one certificate of ten shares of the capital stock of the Universal Light & Power Company, a corporation organized under the laws of the state of Missouri, and one certificate of deposit of the Mechanics' Bank of St. Louis, good for the payment of two hundred dollars, the description of which said certificate of deposit is to the grand jurors unknown, all of the value of five hundred dollars, and all of the money, goods, chattels, and personal property of Collie Hamilton, then and there being found, feloniously did then and there steal, take, and carry away, with the intent then and there to deprive the owner of the use thereof, and to convert the same to his own use, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

It is insisted, first, that the certificate of deposit issued by the Mechanics' Bank of St. Louis to Mrs. Hamilton for the moneys deposited by her in said bank, and which is alleged in the indictment to be good for the payment to her of $200, is not the subject of larceny under the laws of Missouri. Choses in action were not the subject of larceny at common law, but by express statute they are made so in this state. Rev. St. 1889, §§ 3535, 3539. Section 3535 makes the felonious stealing of any "right of action" of the value of $30 grand larceny. Section 3539 is as follows: "If the property stolen consist of any bond, covenant, note, bill of exchange, draft, order or receipt, or any other evidence of debt, or of any public security issued by the United States or this state, or any instrument whereby any demand, right or obligation shall be assigned, transferred, created, increased, released, extinguished or diminished, the money due thereon or secured thereby, and remaining unsatisfied, which in any evidence of contingency might be collected thereon, or the value of the property transferred or affected, as the case may be, shall be deemed prima facie evidence of the value of the article so stolen." That a certificate of the deposit of money will fall within the general term "right of action," used in section 3535, cannot admit of discussion; hence the first contention of defendant must be ruled against him. But he makes a more specific objection to the indictment, namely, that, conceding the certificate...