State v. Homes

• Decision Date: 31 October 1852
• Citation: 17 Mo. 379
• Parties: STATE OF MISSOURI, Respondent, v. HOMES, Appellant.
• Court: Missouri Supreme Court

17 Mo. 379

STATE OF MISSOURI, Respondent,

v.HOMES, Appellant.

Supreme Court of Missouri.

October Term, 1852.

1. A party taking the property of another under a fair color of right or title, is not guilty of larceny.

2. It is not error for a court to refuse to give instructions which are mere commentaries on evidence.

Appeal from St. Louis Criminal Court.

The defendant was indicted for stealing hogs. The evidence for the state was, that defendant and another man (who was impleaded with him, but against whom a nol pros. was entered) were found hauling five hogs away on a wagon, two of which were claimed by one Frederick Price; the others were supposed to belong to the defendant. Price's hogs were marked, and had been running at large where defendant killed them.

On the part of the defence, it was shown that the defendant had formerly lived in that neighborhood, and when he moved away, left twenty or thirty hogs running at large there, which had been bought by him of different persons, had different marks, and were of different sizes; that defendant was advised to kill his hogs, as some other people were supposed to have altered his marks on some of them, and would kill them if he did not; that defendant went with four other men and several dogs to the place where the hogs were, and there killed them openly between nine o'clock, A. M., and four o'clock, P. M., near a public road and an inhabited house, keeping up much noise in setting the dogs on the hogs and shooting them. The defendant also proved a good character for honesty.

The court refused the following instructions, asked by defendant:

1. If there be any fair claim of property or right to the hogs in the defendant, or if this fact be brought into doubt at all, the jury is bound to acquit.

2. The time, place and manner of killing and taking possession of the hogs, together with the fact that the defendant had hogs in that vicinity, are facts which the jury should consider in making up their verdict.

The jury found the defendant guilty, and he was sentenced to three years' imprisonment in the penitentiary. A motion for a new trial was overruled, and the case comes to this court by appeal.

F. Spies, for appellant. The first instruction asked by defendant and refused ought to have been given. It is applicable, and is in the very language of the books, as to the law governing such cases. Roscoe's Crim. Ev. 591. The second instruction also should have been given. It properly directed the attention of the jury to the facts that should influence their verdict. Roscoe's Crim. Ev. 590. 2 Stark. Ev. 443. Wharton's Am. Crim. Law, 394, 397. The instructions given were illiberal, and did not supply the place of those asked by the defendant. All the circumstances given in evidence show that the defendant might well have acted under the honest but mistaken belief that he was taking his own property, and the jury should have been told that this was not larceny.

J. R. Lackland, for the state. The first instruction asked by defendant is erroneous. It is...