State v. Lambert
| Citation | 21 Mo.App. 301 |
| Parties | STATE OF MISSOURI, Respondent, v. WILLIAM P. LAMBERT, Appellant. |
| Decision Date | 22 March 1886 |
| Court | Court of Appeals of Kansas |
APPEAL from Jasper Circuit Court, HON. M. G. MCGREGOR, Judge.
Affirmed.
The case is stated in the opinion.
J. W MCINTIRE, for the appellant.
I. The indictment was drawn under section 1318, Revised Statutes and the testimony was all to the effect that the mineral was washed out of an old pile of " tailings," the most of which had been dug and mined from other lands than those of the smelting company, prosecutor. If the defendant was guilty at all, the indictment should have been under section 1317, Revised Statutes, but the indictment in this case was not sufficient under that section, as it did not state the facts or follow the statute. State v. Myers, 20 Mo 409; State v. Fletcher, 18 Mo. 425; State v. Aster, 65 Mo. 653.
II. The facts cannot make a case under section 6445, Revised Statutes. The defendant had bought the " tailings" with the mineral thereon and wash place in 1876, one year prior to the enactment of the mining law, and the title to same vested in him absolutely at that time, and could not be divested by legislative act. At that time prosecutor had no interest in the land.
III. The court erred in rejecting evidence tending to show that the prosecutor was not the owner of the property. In this case there was no trespass, which must exist in every larceny. Hale v. Adkins, 59 Mo. 144.
IV. The court erred in refusing instructions asked for defendant. If the mineral had not been mined on the Granby Smelting Company's land, it would not have been the owner of it, unless it had acquired it by purchase. Prior to the mining law of 1877 (sect. 6443, Rev. Stat.) a miner, under contract with the land owner, was the absolute owner of the lead ore mined or dug. Long v. Lowe, 42 Mo. 545.
No brief on file for the respondent.
The defendant was indicted and convicted for stealing a quantity of lead ore of value less than thirty dollars. The indictment was manifestly based on section 1318, Revised Statutes, which declares, that: " Every person who shall steal, take, or carry away any money, or personal property, or effects of another, under the value of thirty dollars, not being the subject of grand larceny without regard to value, shall be deemed guilty of petit larceny," etc.
The indictment charges, substantially, that defendant, on the ______ day of June, 1882, at the county of Jasper, unlawfully stole, took, and carried away two thousand pounds of lead ore, of the value of twenty-four dollars, the property of the Granby Mining and Smelting Company, a corporation duly incorporated under the laws of the state of Missouri, etc.
I. To constitute the offence charged, it devolved upon the state to maintain by proof three propositions: first, the taking and carrying away of the property by the defendant; second, that the thing so taken was the personal property of another, and of some value; and, third, that defendant took it with the fraudulent purpose to deprive such owner of his ownership therein, and to wrongfully appropriate the same.
There is no question made as to the taking and carrying away, as the defendant admits that he loaded the ore into his wagon at Granby, in Newton county, and hauled it to Joplin, in Jasper county, where he was found in possession of it and arrested. The state's evidence tended to show that the Granby Mining and Smelting Company was a corporation at the time engaged in mining and smelting lead ore at the town of Granby and elsewhere; that it owned and controlled large bodies of land in and about Granby, containing such mineral, contributory to its business. A brief summary of the state's evidence, bearing on the question of ownership, will more satisfactorily present the strength of the state's case. Kingston, the superintendent of the works at Granby, testified that the wash place, from which defendant took the mineral in question, was what is known as the Philadelphia Company mining land, the same being land owned and controlled by the Granby Mining and Smelting Company; that defendant washed the mineral from what is known as tailings, from which the mineral had mainly been washed years before by the company; that the mineral was mined...
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