State v. Hill

• Court: Missouri Supreme Court
• Writing for the Court: NORTON
• Citation: State v. Hill, 65 Mo. 84 (Mo. 1877)
• Decision Date: 30 April 1877
• Parties: STATE OF MISSOURI v. HILL, APPELLANT.

65 Mo. 84

STATE OF MISSOURI

v.HILL, APPELLANT.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Lafayette Criminal Court.--HON. WM. H. H. HILL, Judge.

Clayton & Callahan for appellant.

J. L. Smith, Att'y Gen., for the State.

NORTON, J.

The defendant was indicted in the Circuit Court of Lafayette County at its November Term, 1874, for grand larceny in stealing one gray mare mule, the property of John Haeder. The cause was properly certified and transferred from said court to the Criminal Court of said county, in which court it was tried at the March Term, 1876, and a verdict of guilty returned, and the punishment assessed at three years' imprisonment in the penitentiary. Defendant's motion for a new trial being over ruled, he brings the cause to this court by appeal. The errors assigned in the motion are that the court erred in giving improper and refusing to give proper instructions; in admitting illegal and refusing to admit legal evidence; that the verdict was against the evidence; and that one of the jurors after the trial had said that fifty dollars had been paid by the defence to one Powers or Bowers, a witness in said cause, not to appear and testify, and that said juryman knew this at the time he was acting as juryman in said cause and before a verdict was rendered.

1, EVIDENCE: possession of stolen property.

. INDICTMENT: proof: variance.

3. EVIDENCE: admissions.

I. The instructions given and objected to are as follows: 1. “The court instructs the jury that recent possession of stolen property is in presumption of law guilty possession, and if the jury believe from the evidence that defendant had possession of the mule alleged in the indictment to have been stolen at the house of one Patrick Lillis recently after the same was stolen, then such possession was guilty and unless explained by the evidence in the case to the satisfaction of the jury they shall find him guilty as charged.” 2. That though the indictment describes the stolen property as a gray mare mule, and though the evidence may show that the stolen property was an iron gray mule or a dark iron gray mare mule, the variance in that particular is immaterial, and if from the evidence the jury believe that the defendant did on or about the 7th day of May, 1874, feloniously take, steal and carry away a dark iron gray mare mule belonging to the said John Haeder, the jury shall find the defendant guilty as charged.” 3. “In considering what the defendant said the jury must consider it all together. He is entitled to the benefit of what he said for himself if true, as is the State to the benefit of what he said against himself. In any conversation proved by the State, what he said against himself the law presumes to be true because against himself, but what he said for himself the jury are not bound to believe because said in a conversation proved by the State. They may believe it or disbelieve it as it may be shown to be true or false by the evidence in the case.”

II. The following instructions asked by the defendant were refused: 1. “That to authorize a conviction in this case it is not sufficient to prove that the gray mule left by the defendant at the place of Patrick Lillis resembled the mule of said Haeder, but the jury must believe and find from the evidence that said mules have been identified to be one and the same mule, and unless said mules have been so identified, or if the jury have a reasonable doubt as to the identity of said mules, they will find the defendant not guilty. 2. The jury are instructed that they may from circumstantial evidence alone find the defendant guilty, when the facts established are inconsistent with any other theory than that of his guilt, but in order to find the defendant guilty from circumstantial evidence the facts proven must be wholly inconsistent with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt; and before the jury can find the defendant guilty they must believe and find from the evidence that the circumstances proven in the case are not only inconsistent with the innocence of the accused and reconcileable only upon the ground of his guilt, but they must further find that no satisfactory explanation...