State v. Harris

• Decision Date: 31 December 1924
• Docket Number: 25706
• Citation: 267 S.W. 802
• Parties: STATE v. HARRIS et al
• Court: Missouri Supreme Court

267 S.W. 802

STATE v. HARRIS et al

No. 25706

Supreme Court of Missouri, Second Division

December 31, 1924

Chas B. Butler, of Doniphan, for appellants.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty Gen., for the State.

OPINION

HIGBEE, C.

The prosecuting attorney of Ripley county filed an information in the circuit court of that county on October 26, 1922, charging that Alex Harris, Ira Reynolds, and Grover Notter, on the -- day of May, 1922, feloniously stole, took, and carried away 12 sheep, of the goods and chattels of John Rome, of the value of $ 50, etc. A severance was granted as to Reynolds, and later a nolle prosequi was entered as to him. Grover and Harris were tried, found guilty of grand larceny as charged, and each was sentenced to the penitentiary for a term of two years.

The evidence for the state tended to prove that John Rome had 11 lambs and 1 ewe running at large on the range near his home in Ripley county; that they disappeared about the 1st of May, 1922, and about the 1st of July Rome found 10 of the lambs and 1 ewe in the possession of the defendant Grover Notter, who lives about three miles from John Rome. There was evidence that early in May the defendant Harris hauled the lambs to Notter's premises. The defendants offered evidence tending to prove that early in May Notter bought the lambs from Ira Reynolds in the usual course of business, and that Reynolds employed Harris to haul them to Notter's farm.

1. Instruction 1, given for the state, reads:

'The court instructs the jury that, if you find and believe from the evidence in this case that the defendants Alex Harris and Grover Notter, at any time within three years next before the 26th day of October, 1922, at and in the county of Ripley and state of Missouri, did then and there steal, take, and carry away the 10 head of sheep mentioned in the information, and in the evidence in this case, or any number of the same, with the intent to convert the same to their own use, and to deprive the owner thereof permanently, the same then and there being the personal property of and belonging to John Rome, you will find them guilty of grand larceny as they stand charged by the information in this case, and you will fix the punishment of each so found guilty at imprisonment in the penitentiary for a term of years not less than two nor more than five, and you will so state in your verdict; and, unless you so find and believe from the evidence, you will find the defendants not guilty and so state in your verdict.'

Instruction 2 authorized the jury to find either or both of the defendants guilty or not guilty as they might believe from the evidence them to be guilty or not guilty. No. 3 is on the credibility of the witnesses, and No. 4 is on the presumption of innocence. No other instructions were given.

Appellants complain of instruction 1: First, there is no proof of the value of the sheep alleged to have been stolen and found in Notter's possession; second, there is no proof that the sheep were stolen.

This prosecution is based on section 3312, R. S. 1919, which denounces as grand larceny the stealing of any article of personal property of the value of thirty dollars or more, 'or any horse, mare, gelding, colt, filly, ass, mule, hog or neat cattle.'

'The term cattle designates domestic quadrupeds collectively, and has been held to include horses, sheep and swine as well as animals of the bovine species. But the term 'neat cattle' includes only cattle of the bovine species.' State v. Lawn, 80 Mo. 241, 242. This is the generally accepted definition. 29 Cyc. 376; Kelley's Crim. Law, § 647. Consult Jones v. State, 64 Fla. 92, 59 So. 892, L. R. A. 1915B, 71.

These were small spring lambs. There was no evidence of their value, nor did the instruction require a finding that they were of the value of $ 30 or more. As sheep are not included in the list of domestic animals enumerated in the statute, the stealing of which is declared to be grand larceny without regard to value, the instruction must be held to be erroneous. State v. Murphy, 141 Mo. 267, 42 S.W. 936.

2. Appellants state in their brief:

'Recent exclusive and unexplained possession of stolen property raises the presumption of guilt, but this presumption does not arise until the state shows the property was stolen. In this case the state did not show the property was stolen at all.'

In State v. Swarens, 294 Mo. 139, 151, 241 S.W. 934, 938, James T. Blair, C. J., said:

'The statement that the burden of proof is by the presumption mentioned put upon defendant to explain is not authority for an instruction to a jury, under our system respecting...