State v. Loehr

• Decision Date: 14 November 1887
• Parties: The State v. Loehr, Appellant
• Court: Missouri Supreme Court

5 S.W. 696

93 Mo. 103

The State v. Loehr, Appellant

Supreme Court of Missouri

November 14, 1887

Appeal from St. Louis Criminal Court. -- Hon. G. S. Van Wagoner Judge.

Affirmed.

W Busch for appellant.

(1) The court erred in allowing one Tracy to testify as to conversations with defendant concerning the ownership of the property alleged to have been stolen. State v Turner, 76 Mo. 350; State v. Martin, 74 Mo. 549; State v. Reavis, 71 Mo. 419; State v. King, 78 Mo. 555; State v. Cox, 67 Mo. 392. (2) The instruction as to an alibi was intended to mislead, and did mislead, the jury. If defendant's instruction was defective, it was the court's duty to give a proper one. State v. Banks, 73 Mo. 592; State v. Jones, 61 Mo. 232. (3) The court erred in giving oral instructions to the jury. R. S., sec. 1920; State v. Cooper, 45 Mo. 64. The court erred in passing upon the weight of certain evidence. (4) There was no proof that the company was incorporated. (5) The indictment was void. (6) Brady's testimony was illegal, because his name was not indorsed upon the indictment. State v. Roy, 83 Mo. 268.

B. G. Boone, Attorney General, for the state.

(1) The testimony of one Tracy, as to conversations with appellant as to the ownership of the iron in the Missouri Pacific yards, and his warning to appellant, from time to time, not to take it, was properly admitted, to show that appellant had knowledge of the ownership of the property. (2) The records of former convictions of appellant were properly admitted to affect his credibility. State v. Palmer, 88 Mo. 568, and cases cited; State v. Bulla, 89 Mo. 595; State v. Rider, 90 Mo. 54. (3) The instruction given relative to an alibi was sufficient. State v. Jennings, 81 Mo. 190; State v. Rockett, 87 Mo. 668. (4) Appellant, in his motion in arrest, complains of the indictment. It sets forth the former conviction clearly and distinctly, and then charges the petit larceny in the usual form, save that it is charged to have been done feloniously, as required by section 1664, Revised Statutes. The indictment concludes, "against the peace and dignity of the state," as required by the constitution. Const. Mo., art. 6, sec. 38. (5) The instruction as to the credibility of witnesses, their interest in the result of the trial, etc., was in the form approved by this court. State v. Elliott, 90 Mo. 350. (6) It is not required that the names of all witnesses examined by the state should be indorsed on the indictment. State v. O'Day, 89 Mo. 561; State v. Phelps, 91 Mo. 478.

OPINION

Norton, C. J.

In the St. Louis criminal court defendant, in November, 1885, was tried and found guilty under an indictment, charging him with having committed petit larceny, after having been once convicted and punished for committing a previous petit larceny. He was sentenced to be imprisoned in the penitentiary two years, and brings his case to this court by appeal, and seeks a reversal of the judgment on various grounds, one of which is that the indictment does not sufficiently charge the offence.

The indictment is based on section 1664, Revised Statutes, which among other things, provides as follows: "If any person convicted * * * of petit larceny * * * shall be discharged, either upon pardon or upon compliance with the sentence, shall subsequently be convicted of any offence committed after such pardon or discharge, he shall be punished as follows: * * * if such subsequent conviction shall be for petit larceny, * * * the person convicted of such subsequent offence shall be punished by imprisonment in the penitentiary for a term not exceeding five years." The indictment in this case alleges, in substance, that defendant, on the twentieth day of December, 1880, was charged and convicted in the St. Louis court of criminal correction of petit larceny, and fined one dollar and costs; that he complied with said sentence, and was discharged, and that thereafter, on the fourteenth of March, 1883, defendant did, in the city of St. Louis, feloniously steal, take, and carry away fifty pounds of iron, of the value of ten cents per pound, of the property of the Missouri Pacific railroad company, a corporation duly organized," etc. It will be seen, by comparing the indictment with the section of the statute above quoted, that it is drawn in compliance with it, contains all the...