State v. Moore

• Decision Date: 16 June 1890
• Citation: 14 S.W. 182,101 Mo. 316
• Parties: STATE v. MOORE.
• Court: Missouri Supreme Court

14 S.W. 182

101 Mo. 316

STATE v. MOORE.

Supreme Court of Missouri.

June 16, 1890.

LARCENY — POSSESSION OF STOLEN PROPERTY — FLIGHT.

1. On trial for horse-stealing, an instruction that the larceny of a horse is the taking and carrying away of a horse of another from the possession of the owner without his consent, with intent to convert the horse to the taker's use, or to deprive the owner of his property, is erroneous, as it leaves out the element of felonious intent in the taking.

2. The possession of the bailee of the horse is the possession of the owner, and a larceny from the former is a larceny from the owner.

3. The fact that defendant was in possession of another stolen horse is a circumstance to be considered by the jury as tending to show the guilty possession of the one for the theft of which he is indicted.

4. Defendant's flight or attempt to escape arrest may be considered by the jury as a circumstance establishing his guilt.

5. Recent possession of stolen property raises a conclusive presumption of guilt, unless rebutted or refuted by other circumstances.

6. Defendant's explanation of his possession of the stolen property does not entitle him to acquittal because it fairly accounts for that fact.

Appeal fom circuit court, Jackson county; HENRY P. WHITE, Judge.

The defendant, indicted for stealing a horse belonging to Luther C. Campbell, on trial was found guilty, and his punishment assessed at two years' imprisonment in the penitentiary, has appealed to this court. The testimony, in brief, is the following: The horse stolen was a large sorrel horse belonging to Luther C. Campbell, and worth about $90. Campbell lived in and was engaged in the drug business in Kansas City, Mo.; the horse got his left hind foot hurt along in August, 1888, and on the 29th day of that month Campbell sent him to the pasture of Mr. Hardesty, which was in another part of the city, and distant about one and a half miles from where Campbell lived. Hardesty took the horse to pasture, and he remained there until Friday, the 12th day of October, 1888, when he and another horse, which was being pastured there, were stolen. There was a barbed wire fence around the pasture, and the only place discovered where the horse could have gotten out was a place in the fence where the lower wires were tied together. By this means, and the top wire being raised up, they could have been taken out. After the horse was stolen, the owner found him in the possession of Mr. Clariday, 15 miles north of the city, and took him home. The horse was traded to Mr. Clariday by defendant on Saturday morning, the 13th of October. On the day previous, defendant being indebted to Mr. Clariday, told him that some one had traded for five horses for him, and he would be able to deliver him four in payment of his indebtedness. He said he had not seen them yet, and could not describe them, and could not deliver them that day, but would do so on the first boat in the morning. The next morning Mr. Clariday went to the ferry, getting there about daylight, and crossed the river two or three times, looking for defendant, before he could find him; finally met him on the opposite side of the river, defendant having crossed before daylight, (the reason he did not meet him earlier,) and no one saw him when he was crossing. Defendant said he only brought two horses. He had them tied back about 200 yards, and not in sight of the ferry. The two horses in his possession were described as the same horses that were stolen the night before from Hardesty's pasture. When Clariday traded with him he wanted him to go down to see Tining, as he wanted a witness, and defendant at first declined, claiming that he was in a hurry. Officers Park and Burns after this saw defendant and another man, and attempted to arrest them; and, notwithstanding they were fired at several times, they succeeded in making their escape, but the next morning they arrested defendant. The defense undertook to show a purchase of the horses by defendant from a stranger, a mover. Defendant, in attempting to account for his possession of the horse, claimed he had bought him, together with five or six other horses, from a mover; that he had traded land for them; said that he had bought them on Friday morning, before he had the talk with Clariday about delivering them to him, and that at the time he had this conversation the horses were in his stable at home; and he denied escaping or running from the officers. At the conclusion of the testimony, the court, of its own motion, gave these instructions: "The defendant is charged with grand larceny. It is alleged that he stole a certain horse belonging to the witness Luther C. Campbell. The larceny of a horse differs from other larcenies in this: the stealing of a horse is grand larceny, without respect to the value of the horse, provided it is of any value whatever, and the punishment for the offense is imprisonment in the state penitentiary for a term of years not less than two, and not exceeding seven years. The punishment, usually, for grand larceny, is imprisonment in the state penitentiary for a term ranging from two to five years. Larceny, for the purposes of this trial, is the taking and carrying away of the horse of another from the possession of the owner, without his assent, with intent, on the part of the person doing such taking and carrying away, to convert such horse to his own use, or to deprive the owner of his property in it. The indictment was filed on the 16th day of November, 1888. Bearing the foregoing in view, and considering it as a basis for and a part of these instructions, the court submits to you the further instructions, to-wit: First. If you shall believe, and find from the evidence in this cause, that, at the county of Jackson, state of Missouri, any time within three years next before the day on which the indictment in this cause was filed, the defendant, either alone or with the assistance of another, or others, took and carried away the horse described and mentioned in the indictment, the same being the property of or belonging to the witness Luther C. Campbell, and shall believe that such taking and carrying away was from the possession, and without the assent, of the said Campbell, and shall further believe that the intent of the defendant in so taking and carrying said horse away was to convert the same to his own use, or to deprive the owner of his property, then you will find the defendant guilty as charged, and assess his punishment according to the directions respecting punishment heretofore and hereinabove stated to you. Second. According to the evidence adduced, you must consider and treat the possession of the horse named in the indictment by the witness Hardesty as a possession by and on the part of the witness Luther C. Campbell. Third. Although you may believe that the defendant stole one or several horses, you must find him not guilty unless you find that he took the horse named in the indictment in a manner, under circumstances, and with an intent such as to constitute a larceny with respect of such horse, according to the law as stated in those instructions; and the matter of the defendant having in his possession a horse stolen at the same time the one named in the indictment was stolen, provided it was stolen, shall be wholly disregarded by you further than as such possession may serve to enable you to form a judgment as to the nature and character of the defendant's possession of the horse so named in the indictment. Fourth. Although you may believe that the defendant fled or escaped at the time the police officrs attempted to arrest him, yet you must not consider such flight or escape as establishing the guilt or innocence of the defendant. Such flight or escaping is only a circumstance for you to take into account, and give such weight, in connection with all of the facts and circumstances, as you deem proper. Fifth. Possession of personal property recently after the same is proven to have been stolen raises the presumption that the person so in possession is the person who stole the same, and this presumption becomes conclusive unless it is overcome or refuted by the circumstances of the taking, or the circumstances of the possession, or by proof, reasonably satisfactory, that such possession was innocently or honestly acquired. If, therefore, you shall believe that the horse named in the indictment was stolen, and that recently thereafter the defendant was in possession of such horse, you must find that the defendant is the person who stole such horse, unless you shall further find that the presumption above named, as running with the possession of stolen property, is overcome or refuted by the circumstances of the stealing of such horse, or by the circumstances under which the defendant was in the possession of the same, or by an explanation of such possession by proof which reasonably satisfies you that such possession was innocently or honestly acquired. In the manner of explaining or accounting for the possession of property proved to have been stolen, the burden is for the defendant; but he is not required to establish the honesty or innocence of his possession beyond a reasonable doubt. It is only necessary that evidence upon such matter should, as heretofore stated to you, be such as reasonably satisfies you. Sixth. You are sole judges as to the credibility of witnesses and the weight of testimony,...