State v. Martin

• Decision Date: 31 July 1859
• Citation: 28 Mo. 530
• Parties: THE STATE, Respondent, v. MARTIN, Appellant.
• Court: Missouri Supreme Court

28 Mo. 530

THE STATE, Respondent,

v.MARTIN, Appellant.

Supreme Court of Missouri.

July Term, 1859.

1. A. was indicted for stealing certain cattle alleged in the indictment to be the property of B. At the trial, one C., who had been summoned as a juror, stated, upon his voir dire, that he knew the cattle alleged to have been stolen; that his brother had once owned them, and had sold them to one K., who had sold them to B. Held--the allegation as to B.'s ownership not being controverted--that C. was a competent juror.

2. Although cattle may have wandered away from the owner's enclosure, and the owner may not know where they are, yet if another coming across them drives them off and converts them feloniously to his own use, he is none the less guilty of larceny because he is ignorant of their true owner and their owner may not know where they are; the ownership draws along with it the possession under such circumstances.

3. Hearsay testimony is inadmissible in evidence.

4. Where declarations or statements made by an accused person are admitted in evidence against him, he has a right to insist that the whole of his statements and not a portion merely shall go before a jury; what credit shall be attached to the whole, or any part thereof, is a matter exclusively for the jury.

Appeal from Benton Circuit Court.

This was an indictment for grand larceny. The indictment charged the defendant, William Z. Martin, with feloniously stealing two oxen, the property of Stephen L. Cheatham. The court gave the following instructions at the instance of the prosecution: “1. If the jury believe from the evidence that said Cheatham was the owner and possessed of the cattle mentioned in the indictment, and that defendant knowingly took and drove them away, in Benton county, against the consent of said owner, without any claim of right, and with the intent to deprive said owner of them and to convert and appropriate them to his own use, and thereby to defraud said owner of them, they will find him guilty. 2. If the jury believe from the evidence that said Cheatham was the owner of the cattle and that they strayed away from him and went to Mr. Baker's, and while they were at Baker's and at the time defendant took and drove them away (if he did so) said Cheatham was still the owner of them, then the said ownership drew to said Cheatham the possession, and the defendant is not the less guilty from the fact of having taken them at said Baker's, nor from the mere fact of their having so strayed away, if the facts otherwise fix his guilt.”

The court gave certain instructions asked by defendant, but refused the following: “7. If the jury shall believe from the evidence that the cattle had strayed away from Cheatham before he moved away from the place the cattle strayed from, and that Cheatham afterwards moved six or seven miles from that place, and that Cheatham did not know where they were, yet, although the defendant may have been the person who took the cattle, it was not a felonious taking of the cattle from Cheatham's possession. 8. Whenever the declarations of the defendant are given in evidence to establish a fact against him, and his declarations when proved tend to prove a fact in his favor, whatever he said in his own favor should be taken as true unless it is disproved by other evidence in the cause. 9. If the jury shall believe from the evidence that the cattle strayed away from Cheatham, and he did not know where they were, and that they were running about the premises of the witness Baker, and that it was not known who was the owner of them, and that there were no marks about them so that the owner could be known, they were lost property within the meaning of the law. 10. If the jury shall believe from the evidence that Cheatham lost the cattle out of his possession and that defendant found them and did not know the owner of the same, and, believing that they were lost, took them openly in the day time, they should acquit him. 11. If the jury shall find from the evidence that the cattle had been lost out of the possession of Cheatham for a considerable length of time, the defendant is not required to prove how he came into the possession of the property to disprove any presumption of guilt.”

Johnson & Ballow, for appellant.

I. The court erred in determining that Gallaher was a competent juror. He had formed an opinion on a material fact to be tried. He knew the cattle to be Cheatham's.

II. The court erred in refusing to admit the testimony as to Hendricks' admissions; also in giving the second instruction asked by the state. (See State v. Conway, 18 Mo. 321.) The instruction was calculated to mislead the jury. The property had strayed away; it was lost to the owner. (3 Chitt. C. L. 916.) The court should have given the seventh instruction asked by defendant. Defendant could not be convicted of grand larceny for taking stray cattle. He could only be indicted under the act concerning strays. (R. C. 1855, p. 1511, § 33, 34.) At most he could only be indicted under section fifty of article three of the act concerning crimes and punishments, (R. C. 1855, p. 582,) or under the act concerning strays. The court should have given the eighth instruction. (1 Greenl. Ev. § 218; 2 Carr. & Pag. 629.) The court should have given the ninth and tenth instructions. (18 Mo. 321.) So also the eleventh. Cheatham had lost the cattle. They had been out of Cheatham's possession at least three months before they were found in Martin's. (See 15 Mo. 168; 12 Ill. 259.) The court should have sustained the motion in arrest. The property is not described in the language of the statute.

Ewing, (attorney general,) for the State.

I. Gallaher was a competent juror. When a juror qualifies himself under the statute and the court below accepts him, this court cannot say error was committed. (Baldwin v. State, 12 Mo. 226.) There was no error in excluding the testimony as to one Hendricks' admissions. The instructions given presented the law arising upon the facts properly to the jury. (2 Har. 530; Whart. 651; 2 Tyler, 399, 387.) Our statute concerning lost property would seem not to apply to domestic animals. Such animals when strayed are not considered as lost. The seventh instruction asked by defendant was properly refused. It withdrew from the jury the question of felonious intent, and restricted the issue to the single question of knowledge on the part of Cheatham as to where the cattle were when taken by defendant. The penalty in the thirty-third and thirty-fourth sections of the stray law is cumulative, and for an offence not amounting to larceny. The penalty is for a conversion of the stray after it has been taken up and posted. There could be no larceny in such a case, because the original taking and possession were lawful. The eighth instruction was properly refused. (Wharton C. L. 320; 9 Leigh, 635.) So the ninth and tenth instructions were properly refused, for the reasons that rendered it proper to give the second instruction. The indictment is sufficient. (22 Mo. 453.)

NAPTON, Judge, delivered the opinion of the court.

The first point presented by the record relates to the competency of the juror Gallaher, who, upon his voir dire, stated that he knew the cattle alleged to have been stolen; that his brother had once owned them and had sold them to a man named Kerr, who had subsequently sold them to Cheatham, the person alleged in the indictment to be their owner. This juror the court declared competent, and the defendant was compelled to get rid of him by a peremptory challenge, so that, although the juror did not sit in the case, the question of his competency may be considered as fairly before this court, seeing that the circuit court deprived the accused of one peremptory challenge to which he was entitled if the juror be held incompetent.

Our statute provides that “it shall be a good cause of challenge to a juror, that he has formed or delivered an opinion upon the issue, or any material fact to be tried.” (R. C. 1855, p. 1191.) No question has heretofore arisen upon the construction of this provision of our criminal practice act; nor have we observed any case in any other state, where similar statutes have been passed upon by their courts. Ordinarily, there can not be much practical difficulty in enforcing what seems to be the spirit and object of the provision, which is to secure impartial juries; and when questions of doubtful character arise, the courts of criminal jurisdiction--as a matter of convenience and precaution, and with a view to avoid the possibility of subjecting the state to unnecessary cost, as well to secure to the accused every reasonable satisfaction in selecting his triers--would usually set aside persons of questionable competency, when a bystander could be called in without delay, who would be unexceptionable to all parties. It is probably because of this practice on the circuits--and a very commendable one, too--that no cases of this sort have ever come up to this court. We will, of course, not be understood as casting any censure upon the...