State v. Jenkins

• Decision Date: 03 June 1919
• Docket Number: No. 21230.,21230.
• Citation: 213 S.W. 796
• Parties: STATE v. JENKINS.
• Court: Missouri Supreme Court

213 S.W. 796

STATE v. JENKINS.

No. 21230.

Supreme Court of Missouri, Division No. 2.

June 3, 1919.

Appeal from Circuit Court, Stone County; Fred Stewart, Judge.

Leonard Jenkins was convicted of grand larceny, and he appeals. Affirmed.

G. Purd Hays, of Ozark, and J. B. Norman, of Galena, for appellant.

Frank W. McAllister, Atty. Gen., and C. M. Edwards, of Malden, for the State.

WALKER, J.

The defendant was charged by information in the circuit court of Stone county, at the March term, 1918, with grand larceny in having stolen a hog belonging to J. S. Watson. He was tried and found guilty as charged, and his punishment assessed at two years' imprisonment in the penitentiary. From this judgment he appeals.

J. S. Watson, the owner of the hog, testified that it had been running on the range near his premises until a few weeks before he missed it. Upon instituting a search for it, he found it in the pen of one Delmar Stone, who lived in the neighborhood, who said, upon its being claimed by Watson, that he had bought it from the defendant. This fact was not disputed. There was testimony pro and con as to the identification and ownership of the hog, not necessary to be set out in detail, because the jury, upon a review of the facts, gave credence to the testimony of the witnesses for the state, and upon this based their verdict.

I. The sufficiency of the information is assailed. The offense as charged is based upon section 4535, R. S. 1909. This section does not attempt to define the essentials of the offense. It classifies, first, personal property according to valuation, and, second, by specific designation, the felonious taking of which shall constitute grand larceny. Except to denounce the felonious taking of the property designated as "grand larceny," the statute leaves the elements of the offense to be defined in a charge as at common law. This offense, as thus defined, is the wrongful or fraudulent taking and carrying away by any person of the personal property of another, from any place, with a felonious intent to convert it to the taker's own use, without the consent of the owner. 4 Bl. Com. 239; Hawkins, P. C. c. 33. A later definition which does not differ from the foregoing, except to be more comprehensive, is that it is the felonious taking by trespass, and the carrying away of the goods of another, without the latter's consent, with the felonious intent to deprive the owner of his property, and to convert it to the taker's use. 17 R. C. L. p. 5, and cases. This definition is in accord in all of its material features with the rulings of this court from State v. Gray, 37 Mo. 463, down to the latest expression on the subject, State v. Swearengin, 234 Mo. loc. cit. 552, 137 S. W. 880.

The essentials embodied in these definitions are to be found in the charge here under consideration, viz.: the "felonious taking," by which is meant a taking without color of right or excuse, and the asportation with intent to convert to one's own use, of the property of another, who is definitely designated as the owner. Furthermore, the description of the, property alleged to have been stolen is sufficiently definite to conform to the requirements of a charge of this nature. State v. Swearengin, supra; State v. Dewitt, 152 Mo. loc. cit. 84, 53 S. W. 429. No tenable objection can therefore be made to the information.

II. The evidence was ample to sustain the verdict. The owner as well as other witnesses identified the hog as the property of the former. The defendant admitted that he had taken the hog from the range, had marked and sold it to Delmar Stone, claiming it as his own. Witnesses for the state contradicted this claim of ownership, and stated that the hog belonged to J. S. Watson. The evidence for the state was of a substantial nature and was believed by the jury. Under a somewhat similar state of facts in which the property alleged to have been stolen was taken from the range, we held in State v, Nave, 273 Mo. 366, 201 S. W. 88, that the proof of the corpus delicti was sufficiently, established, and that we would not, under such circumstances, disturb the finding of the jury. State v. Selleck, 199 S. W. 129.

III. The information charged that the name of the owner of the property alleged to have been stolen was "J. S. Watson." In the formal instruction defining the requisites to be found by the jury to sustain a verdict, the initials of the owner were transposed, in that they were given as "S. J." instead of "J. S." This, it is insisted, constitutes such a variance as to authorize a reversal. Under our criminal statutes of jeofails (section 5114, R. S. 1909), if this variance had occurred between the information and the proof, it would not have constituted error, unless it had been found by the trial court material to the merits of the case and hence prejudicial to the defendant. While this statute is directed primarily to variances between the charge and the proof, the error complained of, while not within the letter of the statute, might well be subjected to a like rule of interpretation. A general provision, however, in the succeeding section (5115), which we will refer to more particularly hereafter, obviates, as does section 5114, the interposition of technicalities in the administration of the criminal law, and renders it unnecessary to hold that the error complained of is within the purview of section 5114.

The owner of the property alleged to have been stolen was present at the trial, and testified for the state. His identification, under these circumstances, admitted of no question. If therefore the transposition of the initials of his name in the instruction was discovered during the trial, which is not. probable, it could not have misled the jury, who knew from his personal presence and from all of the proof that he was the owner of the property in question, and they so declared in their verdict in finding the defendant "guilty as charged in the information." It being evident that the jury was not misled, there remains no tenable ground upon which the defendant can base his complaint. The reasonable conclusion is that the error was either regarded by the defense during the trial as of no materiality, and hence it was not called to the attention of the court, or that it was not discovered until a microscopic examination of the record, was made after the trial, for the purposes of this appeal. Upon either hypothesis, it was clearly nonprejudicial, and constitutes no sufficient ground of complaint to warrant a reversal. We are not without express authority under our own rulings for thus concluding. In State v. Taylor, 134 Mo. 109, 152, 35 S. W. 92, one of...