State v. Dewitt

• Decision Date: 31 October 1899
• Citation: 152 Mo. 76,53 S.W. 429
• Parties: STATE v. DEWITT.
• Court: Missouri Supreme Court

53 S.W. 429

152 Mo. 76

STATE v. DEWITT.

Supreme Court of Missouri, Division No. 2.

October 31, 1899.

INDICTMENT FOR GRAND LARCENY — SUFFICIENCY OF ALLEGATIONS — CONTINUANCE — VERDICT — INSTRUCTIONS — NEW TRIAL.

1. Under Rev. St. 1889, § 3535, making it a felony to take, steal, and carry away any "neat cattle" belonging to another, an indictment charging defendants with having stolen "two head of neat cattle" sufficiently describes the property.

2. Under Rev. St. 1889, § 3535, which makes the felonious stealing, taking, and carrying away of neat cattle belonging to another grand larceny, an indictment alleging that defendants did "feloniously steal, take, and carry away two head of neat cattle" sufficiently alleges wrongful intent.

3. Where a motion by defendant for a continuance sets out that it is made to allow defendant to obtain material evidence showing that he was not at the place of the alleged crime when it was committed, complies with the statute, and is the first motion for continuance made by defendant, it should be sustained.

4. Where there is some substantial evidence tending to support the verdict of the jury, the sufficiency of the evidence will not be considered on appeal.

5. Rev. St. 1889, § 4208, requiring that the court instruct the jury in writing, does not require a mere remark made by the court to the jury, and not intended as an instruction, to be in writing.

6. An objection that an instruction to the jury was not in writing cannot be raised in a motion for a new trial, where no exception was saved when the instruction was given.

Appeal from circuit court, Texas county; L. B. Woodside, Judge.

W. F. Dewitt was convicted of grand larceny, and appeals. Reversed.

Barton & Dooley, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

At the November term, 1898, of the circuit court of Texas county, the defendant was convicted of grand larceny, and his punishment fixed at two years' imprisonment in the penitentiary. He appeals.

The indictment was against defendant and one Rude Stark. It is as follows: "The grand jurors for the state of Missouri, duly impaneled, charged, and sworn to inquire within and for the body of the county of Texas, and true presentment make, upon their oath present and charge that one Frank Dewitt and Rude Stark on the 7th day of June in the year 1897, in the county of Texas aforesaid, did then and there feloniously steal, take, and carry away two head of neat cattle, the personal property of one A. C. Street, against the peace and dignity of the state." The indictment was found at the November term, 1897. At the term next following (being the April term, 1898), the cause was continued by the state to the 14th day of November, 1898. On November 25, 1898, defendants filed their motion to quash the indictment upon the ground that it was too indefinite and uncertain, and does not sufficiently set forth the offense to put the defendants on their trial, and does not sufficiently describe the property stolen. The motion was overruled. Defendants then filed their motion for a continuance, which, leaving off the formal parts, is as follows: "W. F. Dewitt and Rude Stark, defendants in the above-entitled cause, being duly sworn, upon their oath say: That they cannot safely proceed to the trial of said cause at this term of the court, on account of the absence of J. C. Davis, Allen Largent, Mary Largent, Mile Stephens, Sarah Jane Stark, and Thomas Jordan, who are material and competent witnesses for the defendant. That said witneses reside at or near Hartshorn post office, Texas county, Missouri. That they believe they can procure the testimony of said witnesses to be used at the trial of said cause at the next term of this court. That they believe they can prove by J. C. Davis, Thomas Jordan, Jr., and Mile Stephens that defendants' general reputation in the neighborhood where they were born and have always resided and now live, for truth and veracity, honesty and fair dealing, is good and commendable. That defendants are informed and believe that the state intends to prove the cattle charged to have been stolen were taken from the range, and at about noon on the 7th day of June, 1897, were sold by defendants to one W. F. Trail, at Raymondville, Missouri. That they believe they can prove by said witnesses Vallis Largent, Mary Largent, and Sarah Jane Stark that defendants were at Newton Dye's sawmill at or about half past ten o'clock of that day, and at Vallis Largent's place of abode at twelve o'clock, or a little past, of that day, and that it was impossible for any person to have traveled from either of the places last aforesaid to Raymondsville, Missouri, by twelve o'clock, or any ways near that time of that day, after they were seen at the places above mentioned, the distance being fifteen or sixteen miles; and they believe all of said facts to be true, and are unable to prove said facts by any other witness or witnesses whose testimony can be as readily procured. That said witnesses are not absent by the connivance, procurement, or consent of these defendants, or either of them. That they caused a subpœna to be issued by the clerk of this court on the 4th day of November, 1898, for Thomas Jordan, Jr. That said subpœna has been returned with the following indorsement thereon: `I hereby certify that I served within writ in the county of Texas and state of Missouri on the 10th of November, 1898, by reading to and in the hearing of George Dewitt and Griffith Jones and Thomas Jordan, Jr.; and John Gideon and Samuel Hawin cannot be found in my county. J. D. Trusty, Sheriff.' That they caused an attachment to be issued on the 16th day of November, 1898, by this court for said witness Thomas Jordan, Jr. That said attachment has been returned with the following indorsement thereon: `Executed the within writ in the county of Texas and state of Missouri on the 17th day of November, 1898, by making diligent search for the within named, and that Thomas Jordan, Jr., is temporarily absent in St. Louis on business, and that George Dewitt is in Shannon county. J. D. Trusty, Sheriff Texas County.' That they are informed and believe that the said Thomas Jordan, Jr., is yet temporarily absent from this county. Said defendants upon their oath further say: They caused a subpœna to be issued by the clerk of this court on the 9th day of May, 1898, for J. C. Davis, Mile Stephens, Vallis Largent, and Sarah Jane Dye, who by marriage with Henry Stark became and is Sarah J. Stark. That said subpœna has been returned with the following indorsement thereon: `I hereby certify that I served the within writ in the county of Texas and state of Missouri on the 17th day of May, 1898, by reading to and within the hearing of all the within named witnesses but Samuel Summers, Samuel Hawin, and George Dewitt. J. D. Trusty, Sheriff.' That all of said witnesses were in attendance at the last term of this court, and were duly notified by the judge thereof, in open session, to attend the trial of said cause at this term. That they caused a subpœna to be issued by the clerk of this court on the 18th day of November, 1898, for the witness Mary Largent, under the name of Elizabeth Largent, her full name being Mary Elizabeth Largent. That said subpœna has been returned with the following indorsement thereon: `I hereby certify that I served the within writ in the county of Texas and state of Missouri on the 24th day of November, 1898, by reading to and in the hearing of all the within-named witnesses. J. B. Trusty, Sheriff.' That they caused an attachment to be issued by the clerk of this court on the 24th day of November, 1898, for J. C. Davis, Vallis Largent, Mary Largent (being the same person who was subpœnaed under...