State v. Crow

• Decision Date: 12 October 1891
• Court: Missouri Supreme Court
• Parties: STATE v. CROW.

17 S.W. 745

STATE v. CROW.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

LARCENY — INDICTMENT — DESCRIPTION OF PROPERTY — VARIANCE — EVIDENCE — GENERAL REPUTATION — FORMER TESTIMONY — CROSS-EXAMINATION.

1. An indictment describing the property stolen as "certain cattle, to-wit, one cow," is sufficient, under Rev. St. 1879, § 1307, making the stealing of "neat cattle" grand larceny.

2. Where an indictment charges the larceny of "a cow," and the evidence shows that the animal was "a heifer," and there is nothing to indicate that defendant was taken by surprise by such evidence, or that the court found that it was prejudicial, or material to the merits of the case, the variance, if any, is cured by Rev. St. 1879, § 1820, which provides that, unless the variance is prejudicial or material, defendant shall not be acquitted.

3. A witness for defendant, on a trial for the larceny of a cow, having testified that defendant's general reputation for honesty was good, was asked on cross-examination if he had not heard of defendant's having been indicted for the larceny of other cattle, and that defendant had been charged with violating the revenue laws by selling whisky without a license. Held that, although such evidence would not have been admissible for the purpose of rebutting defendant's evidence of good character, it was admissible in cross-examination to determine the credibility of the witness and the sources from which his knowledge was obtained.

4. A witness for the state, having testified that defendant on a certain day sold him a hide, and that the next day a person came and claimed it, was asked if he had not seen the said person take an ear from his pocket, and fit it to the hide, which he denied. The state's attorney showed the witness a paper, which he stated was his testimony before the grand jury, and, reading therefrom, asked the witness if he had not there testified that he saw the said person fit the ear to the hide, which he also denied. The court ruled that such cross-examination was improper. The state's attorney then said that he had asked the question from the witness' testimony before the grand jury, and that at the proper time he would read his whole statement in evidence. Held that, although the methods pursued were improper, especially after the witness had repudiated the paper, and the court had passed upon the admissibility of the evidence, yet, inasmuch as the trial judge had found nothing to justify him in setting aside the verdict, and the hide and ear were fitted together in the presence of the jury, and other witnesses testified that they had been so fitted when first obtained, no prejudice could result to the defendant.

5. Where, on a trial for the larceny of a cow, it appeared that the defendant had killed a cow in his field on a certain day, pieces of ears and the dewlap of a cow, found near the place where the said cow had been killed, were admissible for the purpose of identifying the cow, and showing that the marks and brands had been mutilated.

ON REHEARING.

Rev. St. 1889, § 3540, providing that, if a person willfully kill an animal, the subject of larceny, with intent to steal or convert the same to his own use, he shall be adjudged guilty of larceny, and punished in the same manner as if he had feloniously stolen such animal, applies only to cases where the animal is killed before there is any taking or asportation, and not to the killing of an animal which a person finds upon his premises; the larceny in the latter case being complete before the killing.

Appeal from circuit court, Crawford county; C. C. BLAND, Judge. Affirmed.

Indictment against Luther Crow for larceny. There was judgment of conviction, and defendant appeals.

L. B. Woodside and J. J. Woodruff, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

Defendant was indicted, tried, and convicted in the circuit court for larceny of one cow, the property of Frank Martin. From the judgment he has appealed to this court.

1. The subject of the larceny was described in the indictment as "certain cattle, to-wit, one cow." A motion was made to quash the indictment for the reason that the description of the property charged to have been stolen was insufficient. We do not think so. The statute makes the stealing of "neat cattle" grand larceny. Rev. St. 1879, § 1307. A cow is included in the class of domestic animals denominated "neat cattle." An indictment describing the property stolen as "certain cattle, to-wit, one steer," was held sufficient. State v. Lawn, 80 Mo. 241. The description in this indictment is equally good, and must be held sufficient.

2. Upon the trial the evidence showed that the animal charged to have been stolen was a two-year-old heifer. It is insisted that the variance between the allegation of "a cow" and the proof of "a heifer" is fatal to the verdict and judgment. There is nothing in the evidence to indicate that defendant was taken by surprise by reason of the introduction of this evidence, or, if there was a variance, that it was prejudicial to his defense, or material to the merits of the case. The circuit court did not find the variance prejudicial or material, and it was cured by the statute. Rev. St. 1879, § 1820;¹ State v. Nelson, 101 Mo. 480, 14 S. W. Rep. 718.

3. G. W. Woodruff testified as a witness in behalf of defendant that the general reputation of defendant for honesty was good. On cross-examination the witness was asked, and permitted to answer, over defendant's objection, if he had not heard of the defendant being indicted for stealing other cattle, previous to this; and if he had not heard that the defendant had been charged with violating the revenue laws, and selling whisky without license. Witness answered affirmatively to each question, stating that he had also heard that he had been acquitted of the charge of stealing cattle. The rulings of the court in admitting this testimony are assigned as error. The exact question, so far as we are advised, has never been passed upon by this court, and merits careful consideration. That a defendant prosecuted on a criminal charge may, in all cases, introduce evidence of his previous good character, is no longer a debatable question in this state, whatever restrictions may be placed upon the rule in other jurisdictions. State v. Alexander, 66 Mo. 148; State v. Howell, 100 Mo. 628, 14 S. W. Rep. 4. After the defendant has voluntarily put his character in issue it is competent for the prosecution to meet the issue thus presented by evidence of bad reputation. Whart. Crim. Ev. §§ 5, 61; 3 Greenl. Ev. § 25. The evidence thus allowed, whether given in support or impeachment of the character of the accused, must, as a rule, be confined to general reputation, and cannot be extended to particular facts. State v. Reed, 85 Mo. 194; State v. Reavis, 71 Mo. 420. If the testimony of this witness had been offered by the state as original evidence for the purpose of rebutting the evidence of good character previously introduced by the state, it would have been clearly inadmissible. Defendant was presumed, when he put his general character in issue, to be prepared to defend it; but he could not be held ready to defend other independent acts with which he was not charged. State v. Tabor, 95 Mo. 590, 8 S. W. Rep. 744; State v. Goetz, 34 Mo. 85. The ruling of the court cannot be defended upon the ground that the evidence was admissible for the purpose of rebutting defendant's evidence of good character; but, after careful consideration, we are satisfied that it was properly admitted in cross-examination of the witness to determine his credibility and the sources of the information upon which the knowledge of defendant's character was obtained. When the character of one on trial, charged with a criminal offense, is put in issue, the question becomes more than a mere collateral fact or circumstance in the case; it becomes rather a defense to the prosecution, and upon it alone the accused may be acquitted. "Evidence of character is offered to make a doubtful case," and upon a doubtful case the jury should acquit. State v. Alexander, 66 Mo. 148; State v. Howell, 100 Mo. 662, 14 S. W. Rep. 4; Heine v. Com., 91 Pa. St. 145. To break down this defense would become as important as to overcome any other fact in the case, and opportunity should be given to apply all the usual tests to determine the credibility and information of the witness called in its support. The question would be, is the evidence proposed to be drawn from the witness on the cross-examination relevant to the issue? and not whether it discloses another criminal act of defendant. When defendant put this witness forward to support his character he subjected him to legitimate cross-examination upon the subject of inquiry, and himself to such disaster as might result therefrom. Character is made up of acts and conduct, and evidence in respect to it is, by the rule of law, confined to the...