State v. Napier

• Decision Date: 31 October 1877
• Citation: 65 Mo. 462
• Parties: THE STATE v. NAPIER, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 462

THE STATE

v.NAPIER, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Douglass Circuit Court.--HON. J. R. WOODSIDE, Judge.

Davis, Cabell & Monks for appellant.

The court should have instructed the jury to take all the statements and declarations of the defendant together, and give them such weight as they were entitled to. Bower v. State, 5 Mo. 364.

J. L. Smith, Attorney General, for the State.

HENRY, J.

The defendant was indicted for grand larceny, charged with having stolen eight head of sheep, the property of James H. Martin. At the close of the evidence the court gave for the State eight instructions, to the first, fourth and ninth of which defendant objected. As there were only eight given, we cannot tell which one defendant intended to object to under the designation of number nine. It could not have been number eight, for that is identical with number nine asked for by defendant and given by the court. For defendant the court gave seven and refused two, viz., numbers one and two.

Number one, as given for the State and objected to, is as follows: “The court instructs the jury that if they find from the evidence that the defendant, S. D. Napier, within three years next before the finding of this indictment, did unlawfully and feloniously, steal, take and carry away one sheep, or any number of sheep, the same being the property of J. H. Martin, as charged in the indictment, they will find the defendant guilty, and assess his punishment at a term of imprisonment in the penitentiary not less than two nor more than five years.” We discover no error in this instruction. Defendant's counsel certainly does not mean to contend that it is error, because it instructs the jury, that although they might not find that he had stolen eight sheep, they should convict the defendant if they were satisfied that he had stolen a less number.

The fourth was as follows: “The court instructs the jury that anything defendant has said, or any statement made when not under duress or restraint, but said voluntarily, may be taken as competent evidence against him; but nothing said by him can be used as competent evidence in his favor.” The prosecuting witness in his testimony in chief for the State, testified as follows: “Napier told me he bought them (the sheep) from a mover and paid eight dollars for them. He said the man was moving from Howell Co., Mo., to Kansas. Napier told me he had changed the marks to his own mark, and had taken the bell...