State v. De Mosse

• Decision Date: 10 June 1889
• Citation: 11 S.W. 731,98 Mo. 340
• Parties: STATE v. DE MOSSE.
• Court: Missouri Supreme Court

11 S.W. 731

98 Mo. 340

STATE v. DE MOSSE.

Supreme Court of Missouri.

June 10, 1889.

LARCENY — EVIDENCE — INSTRUCTIONS — BILL OF EXCEPTIONS.

1. The next day after a buggy and harness and other articles were stolen, defendant was found driving in the buggy, with the harness on his horse, and the other stolen articles were found on the next day at defendant's stable. Defendant alleged that he borrowed the buggy of another person, who was also accused of the larceny, and, on both of them being placed in prison, they were heard to mutually blame each other. Held, that the evidence warranted a conviction.

2. Though it is error, under Rev. St. Mo. §§ 1908, 1920, providing that in criminal cases the court must instruct the jury in writing, to give oral instructions, yet such error is not cause for reversal, where they were given at the request of defendant, who saved no exceptions thereto, as section 1821 forbids any judgment to be arrested or affected "for any error committed at the instance * * * of defendant," and section 1921 provides that exceptions in criminal cases rest on the same footing, and have to be taken in the same way, as exceptions in civil cases, which latter, under section 3635, have to be taken at the time the error complained of occurs.

3. Under Rev. St. Mo. §§ 3638, 3640, 3643, providing that when a judge refuses to sign a bill of exceptions it may be signed by three bystanders, and supported by affidavits on which its truth is to be considered, affidavits in contradiction of a bill of exceptions regularly made and signed, cannot be considered.

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

John N. De Mosse appeals from a conviction of grand larceny.

John W. Wofford, for appellant. John M. Wood, Atty. Gen., for the State.

SHERWOOD, J.

The defendant, indicted for stealing a buggy, harness, etc., was convicted of grand larceny, as was also one Totten, who was tried at the same time, the defendant alone appealing.

1. The point is made that the testimony did not warrant the conviction. The next day after the theft, which occurred about the preceding midnight, the defendant was found, about 2 o'clock in the afternoon, driving the stolen buggy, with the harness on his horse. The other stolen articles were found next day, and at his stable. The defendant professed to have borrowed the buggy of Totten. After both of the accused were placed in prison, they were overheard indulging mutual exchange of blamings of each other for the predicament into which they had fallen. There is, therefore, abundant testimony to support the conviction.

2. Another point is made that the court erred in instructing the jury verbally, and not otherwise. The bill of exceptions recites that this was done "at the request of both parties." It is true that Totten and defendant, in their motion for a new trial, swear "that they never did in any way waive their right to have the jury instructed in writing," but such an affidavit cannot be allowed to overthrow the recitals of fact in a bill of exceptions duly signed by the judge. Where a judge refuses to sign a bill of exceptions because it is not a true bill, then the bill may by signed by three bystanders, and supported by affidavits not more than five in number, (Rev. St. §§ 3638, 3640,) and upon the affidavits thus filed the truth of the unsigned bill is to be tried, (Id. § 3643.) For this reason affidavits made in contradiction of a bill regular in every respect cannot be regarded.

3. The statute in respect to instructions in criminal causes, referred to by counsel for defendant, when first enacted was as follows: "Sec. 28. The court shall not, on the trial of the issue on any indictment, sum up or comment upon the evidence, or charge the jury as to matter of fact, unless requested so to do by the prosecuting...