State v. Floyd

• Decision Date: 31 January 1852
• Citation: 15 Mo. 349
• Parties: THE STATE v. FLOYD.
• Court: Missouri Supreme Court

15 Mo. 349

THE STATE

v.FLOYD.

Supreme Court of Missouri.

January Term, 1852.

ERROR TO COLE CIRCUIT COURT.

James P. Floyd, the plaintiff in error, was, at the February term, 1851, of the Cole Circuit Court, indicted for grand larceny. The indictment contains but one count, and charges that the defendant on the day, &c., at, &c., feloniously stole, took and carried away, &c., two striped vests, each worth the sum of five dollars--two black satin vests worth the sum of ten dollars--one black frock coat of the value of ten dollars--one hair brush worth one dollar--one plush cap of the value of one dollar--one bleached domestic shirt worth two dollars--two pair of boots of the value of ten dollars--ten silk handkerchiefs of the value of one dollar each--ten pocket knives of the value of one dollar each--twenty pair of shoes of the value of two dollars each, of the goods and chattels of Thomas M. Winston & Co.

On the first day of the November term, 1851, the plaintiff in error filed his petition, verified by his affidavit, for a change of venue. The grounds of the petition were, that the minds of the inhabitants of Cole county were so prejudiced against him that he could not have a fair trial therein. And on the day following, the court overruled the application for a change of venue, to which opinion of the court the plaintiff in error excepted, and, therefore, filed his affidavit and application for a continuance of the cause, and before the same was determined by the court, asked leave to file an amended affidavit which the court refused and then overruled the application for a continuance, to which the plaintiff in error excepted, and thereupon he was arraigned in due form of law and plead not guilty to said indictment. A jury was sworn and the State introduced the following witnesses: G. M. Wray, Mrs. Trimble, Thomas M. Winston, the prosecutor, Mary Trimble and Eppa Trimble.

The plaintiff in error objected to all that part of the testimony of Eppa Trimble, which relates to the other goods disowned by Thomas M. Winston, the prosecutor; but the objection being overruled by the court, this evidence was permitted to go to the jury, to which the plaintiff in error excepted. The State here closed her case, and the defendant in error introduced the following testimony: The affidavit of Thomas M. Winston before the committing magistrate. G. M. Wray being recalled testified to the good character of the plaintiff in error. The attorney-general admitted that Hiram Mercer Smith would do the same. The plaintiff in error offered in evidence the warrant of arrest issued against the plaintiff in error and one Ambrose Barker jointly, which was objected to by the attorney-general and the objection sustained, to which the plaintiff in error excepted. The counsel for the plaintiff in error then offered to read in evidence the indictment against Ambrose Barker, charging him with the commission of the same offense, which being objected to, and the objection sustained, the plaintiff in error excepted and here rested his case.

The court then, at the instance of the attorney-general, gave the following instructions on the part of the defendant in error. 1st. If within three years next, before the finding of the indictment in this cause, and in Cole county, the defendant stole, took and carried away personal property, of the value of ten dollars or more, described in the indictment, and of the goods and chattels of Thomas Winston or Thomas Winston and partner, against the will of the owners, and with an intention on the part of prisoner to defraud the owners, and apply the things stolen to his own use the jury will find him guilty and assess his punishment to imprisonment in the penitentiary, not less than two nor more than five years. Rev. Stat. 1845, pp. 895, 359, 868; 3 Chitty's Cr. L. 926; 2 Stark. Ev. 827. 2nd. If goods of the value of ten dollars or more, described in the indictment, were stolen and afterwards found in the possession of the defendant, it is prima facie evidence of guilty possession, and if unexplained by him is conclusive evidence of his guilt. 1 Greenl. Ev. 41.

The plaintiff in error then asked the following instructions. The court gave the first, fifth and tenth, which are as follows: 1. That before they can find a verdict of guilty on this indictment, they must be satisfied from the evidence beyond a reasonable doubt, that the prisoner stole, took and carried away the property mentioned in the indictment, or at least enough of said property to be of the value often dollars. 5. That the jury cannot find the prisoner guilty, unless they believe from the evidence that Floyd took, stole and carried away the goods recognized by Winston, or so many of them as will amount to the sum of ten dollars. 10. If the jury have a reasonable doubt of the guilt of the prisoner, they will find him not guilty. The court refused to give the second, third, fourth, sixth, seventh, eighth and ninth instructions asked for by the plaintiff in error.

To the giving of the second instruction asked for by the defendant in error, and the refusing of those asked for by the plaintiff in error, he excepted. The jury returned a verdict of guilty and assessed his punishment to two years' imprisonment in the penitentiary. A motion for a new trial was filed and overruled by the court, and the plaintiff in error brings the case into this court by writ of error.

PARSONS, for Plaintiff.

1. The Circuit Court should have granted a change of venue in this cause. The record shows the fact to be, that the application for a change of venue was made on the first day of the term, and that it was refused on the second of the term, before the arraignment of the prisoner. The statute requires no written notice, and evidently is intended to mean, if the application be made in open court, the filing of the application gives sufficient notice of the fact. Had the Legislature intended a notice in writing to be served on the prosecuting attorney, they would have so declared. See Stat. of Mo. pp. 874, 875, §§ 17, 20, 24; Reid v. The State, 11 Mo. R. 379. It seems to have been the intention of the Legislature that a change of venue should be a matter of right, and that courts should have no power to refuse the same, or in other words, it was intended that this act should be liberally construed for the benefit of those seeking to avail themselves of it. Sess. acts, 1847, p. 110.

2. The Circuit Court should have granted the plaintiff in error a continuance upon his affidavit, which, though perhaps, informal, contains the substance of the grounds for a continuance; and should, by all means, have permitted an amended affidavit to have been filed before the motion for the continuance was disposed of.

3. The Circuit Court should have excluded all that part of Eppa Trimble's testimony, which relates to the other goods not claimed or identified by Thomas M. Winston. The effect of such testimony was to create the impression upon the minds of the jury that those goods were stolen, and in that manner raise a presumption that the goods identified by Winston were also stolen. Such evidence was calculated to mislead, and did mislead the jury in regard to the issue. 1 Greenl. Ev. 64. The presumption of law is in favor of innocence, and the presumption is that the prisoner came by his property honestly. That presumption is strengthened, in part, by the testimony of Winston, when he denies that a portion of the goods charged in the indictment ever belonged to him, or that he ever lost any such goods. It was incompetent, therefore, for the State to introduce any testimony in regard to such goods, after Winston denied ownership in them. Admitting that those goods were stolen, they were not stolen from Winston, and consequently could form no part of the subject of inquiry under this indictment. 1 Greenl. Ev. 120, 121. Even admitting further, that those goods were Winston's, and it had been proven that they were taken at a different time from those identified by Winsten (admitting that those identified by Winston were stolen) still evidence of the stealing of the goods disclaimed by Winston was inadmissible under this indictment. The presumption of law is in favor of innocence, and the evidence tending to prove one larceny, cannot be introduced to prove a separate and distinct charge. Roscoe's Cr. Ev. 81. The admission of this evidence is sufficient to warrant this court in reversing the judgment of the court below. 2 Russell on Crimes, 725, 726; Walker v. Commonwealth, 1 Leigh, 574.

4. The second instruction asked for by the defendant in error should not have been given. There is no proof that the goods were found in the possession of the defendant in error, recently after the alleged offense was committed. There was evidence going to show that another individual (Barker) might have committed the alleged offense. There was evidence of the good character of the prisoner; all of which should have precluded the court from giving the instruction. It assumes the broad ground, that possession of stolen goods is prima facie evidence of guilty possession, and if unexplained, is a proof of the same. There is a time, after the loss, when this presumption of law ceases, and also there is a time, after the loss, when it is weakened. These questions should have been left for the consideration of the jury. Good character often rebuts the presumption of guilt arising from possession, yet this latter evidence in no wise accounts for or explains the possession. The possession must be recent. The language of the instruction is indefinite. The fact that some other person probably stole the goods, if they were stolen, is a sufficient defense against the prima facie case of possession, but does not explain the possession. In support of the above positions the court is cited to 1 Greenl. Ev. 99, 71; Rosc. Crim. Ev. 643; 2 Phil. Ev., Cow. & Hill's Notes, 425, 426; State v. Merrick, 19 Maine R. 400; 2 Russell...