State v. Gabriel

• Decision Date: 30 April 1886
• Citation: State v. Gabriel, 88 Mo. 631 (Mo. 1886)
• Court: Missouri Supreme Court
• Parties: THE STATE v. GABRIEL, Appellant.

88 Mo. 631

THE STATE

v.GABRIEL, Appellant.

Supreme Court of Missouri.

April Term, 1886.

Appeal from Lawrence Circuit Court.--HON. M. G. MCGREGOR, Judge.

REVERSED.

Joseph Cravens for appellant.

(1) The motion of defendant to strike this case from the docket in the Lawrence circuit court should have been sustained. The order of the Jasper circuit court, changing the venue to Greene county, gave that court jurisdiction, and it was forever gone from the Jasper circuit court. Henderson v. Henderson et al., 55 Mo. 534; Gilstrap v. Felts, 50 Mo. 428; State v. Daniels, 66 Mo. 192. The statute on the subject of changes of venue has always been construed to be more directory than otherwise. State v. Gates, 10 Mo. 400; State v. Elkins, 63 Mo. 159; State v. Underwood, 57 Mo. 40; State v. Sayers, 58 Mo. 58; State v. Whitlow, 68 Mo. 91; Porter v. State, 5 Mo. 538. (2) The instruction asked by the defendant directing an acquittal should have been given, as there was no evidence to support the charge contained in the indictment, or to establish the commission of any offence, and in the absence of such sufficient proof, it is the duty of the court to direct an acquittal. State v. Burgdorf, 53 Mo. 65; State v. Jaeger, 66 Mo. 173. (3) The deposition of Taylor West should have been read to the jury. It shows clearly that defendant was not trying to steal Glasgow's sheep. When he found sheep among his own flock that he did not own, this deposition tells us he was driving them to the man who afterwards charges him with stealing sheep. The acts of defendant in driving the sheep to Glasgow's house and of the boy in driving them back were proper to go to the jury, and the declarations accompanying the acts were admissible as explanatory of such acts. They were admissible for the purpose of showing the intent of defendant in dealing with his neighbor's sheep. It seems we have reached the period in this state when it is only necessary to accuse in order to convict. No proof of guilt of the offence charged is necessary. State v. Gressner, 19 Mo. 247; Crawther v. Gibson, 19 Mo. 365; State v. Fritchler, 54 Mo. 427; State v. Graham, 46 Mo. 490; State v. Matthews, 20 Mo. 55; State v. Underwood, 37 Mo. 225. (4) Instruction number one, given for the state, was erroneous. There was no evidence, not even a circumstance, going to show that defendant “stole, took, and carried away” the sheep in question. State v. Joeckel, 44 Mo. 234; State v. Schoenwald, 31 Mo. 147; Atkins v. Nicholson, 31 Mo. 488. (5) So the state's instruction number two was wrong. The defendant could not be convicted under Revised Statutes, section 1311. State v. Arter, 65 Mo. 653; State v. Stone, 68 Mo. 101; State v. Dodson, 72 Mo. 283.

B. G. Boone, Attorney General, for the state.

(1) The trial court was not authorized on defendant's application for a change of venue, alleging prejudice on the part of the inhabitants of Jasper county, in sending the case to Greene county, which was not in the same judicial circuit as Jasper. Section 1856, Revised Statutes. The order granting the change of venue being without authority, was a mere nullity, and the court did not thereby lose jurisdiction, either to try the case or grant a change of venue to a county within the circuit. State v. Kring, 74 Mo. 612; State v. Hayes, 14 Mo. App. 173. (2) The court ruled properly in refusing to permit the prosecuting attorney to introduce evidence relative to defendant's character. This is never permitted, except in rebuttal of evidence offered by defendant as to good character. State v. Creason, 38 Mo. 372; 1 Denio, 282; Whar. on Crim. Ev. [8 Ed.] secs. 62, 63, 64. (3) The remark alleged to have been made by the prosecuting attorney, for which defendant assigns error, was not such as to prejudice the defendant and the court will not reverse. It is not every indiscreet remark made by a prosecutor that will justify a reversal. State v. Guy, 69 Mo. 432; State v. Estis, 70 Mo. 427; State v. Stark, 72 Mo. 37. Unless a prosecutor misstates the law or the facts in a case his conduct will not be reviewed by this court. State v. Hopper, 71 Mo. 433; State v. Hoffman, 78 Mo. 256. (4) The deposition offered in evidence was properly excluded. The matter it contained was not only irrelevant and incompetent, but mere hearsay. (5) The court gave four instructions at the instance of the state. The first instruction for the state is the usual one as to grand larceny, and was proper under the indictment and the facts. The second, in regard to petit larceny, was likewise correct. The third, which is complained of by defendant, in regard to the conversion of the property or the doing of any act by defendant with intent to convert the property to his own use, is a proper declaration of law applicable to this case upon the evidence. State v. Matthews, 20 Mo. 55; State v. Martin, 28 Mo. 580; State v. Williams, 35 Mo. 229; State v. Gazell, 30 Mo. 92. The instruction asked by defendant and refused was covered by the instruction given by the court on its own motion, which contained a clearer and fuller statement of law than the one asked by defendant.

SHERWOOD, J.

The defendant, indicted for the grand larceny of several sheep, when tried, was convicted of petit larceny, though the only evidence as to their value showed that they were worth $32.50.

I. There was no error in setting aside the order transferring the cause to the circuit court of Greene county, since that order had been improvidently made, as section 1856, Revised Statutes, confers no authority to award a change of venue to another circuit where the ground of the change is the prejudice of the inhabitants of the county in which the cause is pending. And as the first order awarding a change of venue was a nullity, it was proper to act on defendant's application for a change of venue, and to award that change to Lawrence county in the same circuit.

II. Taylor West's deposition should have been admitted in evidence. It disclosed a state of facts which went a considerable way towards showing defendant had no larcenous designs upon the sheep of his neighbor; and taken with other testimony in the cause would have had a tendency to show that any apparently criminal act of defendant in branding Glasgow's sheep might have readily occurred through mistake or inadvertence, and not as the result of any improper motive. Other evidence in the cause introduced prior to the offer in evidence of West's deposition had established that the fences around defendant's enclosures were in a lamentably poor condition and dilapidated state, so that his sheep of which he had quite a large flock, readily got out of, and those of his neighbors readily got into his enclosure; that Glasgow, from whom the sheep are charged to have been stolen, lived two miles from defendant; that Glasgow's son at the time the sheep in question were missing, was engaged in herding his father's flock, two hundred head on the open prairie; that there was no water there, that the place of herding was close to the timber, and the timber extended round to where the defendant lived, and that there was water there; that Glasgow's son sometimes left the sheep; that some of the sheep of the defendant had the same ear marks as those of Glasgow, but which the latter knew were not his; that some of the sheep of defendant and those of Glasgow “looked some alike”; that the sheep of the latter when sheared in the spring, had red paint daubed on their foreheads, which by the time the sheep in question were missed from their herding place had mostly washed off; that only fourteen of Glasgow's sheep were seen within defendant's enclosure on Sunday, at which time, according to the testimony of Strickland, they were not branded in defendant's mark, a “J” on the hip; that according to Strickland this branding occurred on the following Monday morning when a number of sheep of defendant also, as well as those in question, were thus branded at the same time; that on that morning a number of sheep of Glasgow's were marked as were his, with red paint on their foreheads, were not branded, but turned outside by defendant; that a week before Glasgow's sheep were missed he had separated a bunch of stray sheep from his and had them driven by his son for about a mile in the direction of the defendant's farm, where afterwards he found them, when he went for his own with defendant's sheep unmarked and unbranded. That defendant exhibited every appearance of being desirous of giving up Glasgow's sheep; offered and gave him every assistance in separating them from those of his own; said that some of his sheep were out in the woods, and that if Glasgow and his son would come back on some other day he would have the rest of his sheep up and if any more of Glasgow's sheep were with his, Glasgow could get them. This promise was kept by defendant on the following Friday when Glasgow obtained five more of his sheep; that Glasgow obtained in all thirteen sheep from defendant, which the latter had branded, worth $2.50 a head; that Glasgow claimed two other sheep which defendant had also branded, but defendant claimed them as his own and refused to give them up, and Glasgow, although willing to swear they were his, never brought suit for them.

The only circumstances in the case having any damaging tendency as to defendant's guilt are these: On Monday morning after Glasgow's son had asked defendant on the day before if there were any stray sheep in his pasture, and defendant had replied in the negative, defendant and his tenant, Strickland, according to the latter's story, after turning outside a number of sheep painted red in their foreheads, proceeded in broad daylight to brand as his own a large number of others, among them those claimed by Glasgow; and, according to Glasgow, that defendant when interrogated by him, when he went for the sheep on the next day, Tuesday after the sheep were said to have been branded, said he branded the sheep because he th...