State v. Patterson

• Decision Date: 10 June 1889
• Citation: 11 S.W. 728,98 Mo. 283
• Parties: STATE v. PATTERSON.
• Court: Missouri Supreme Court

11 S.W. 728

98 Mo. 283

STATE v. PATTERSON.

Supreme Court of Missouri.

June 10, 1889.

LARCENY — FROM DWELLING-HOUSE — INSTRUCTIONS — DEFENDANT AS WITNESS.

1. On trial for grand larceny of money from a dwelling-house, under Rev. St. Mo. § 1309, providing that any one committing larceny in a dwelling-house may be punished by imprisonment in the penitentiary not exceeding seven years, an instruction that if defendant stole the amount required to make grand larceny he should be convicted without regard to where the crime was committed, and that, if it was not committed in a dwelling-house, the jury should assess his punishment at not more than five nor less than two years in the penitentiary, and at not less than two nor more than seven years, if committed in a dwelling-house, is misleading, where there is no evidence that the money was stolen elsewhere than in a dwelling-house.

2. Where there is evidence that the larceny was of less than the amount required to make grand larceny, and that the money was stolen when under the care and protection of its owner, who at the time was in a dwelling-house, an instruction that if defendant stole that amount in a dwelling-house, though from the immediate possession of its owner, he should be punished for larceny committed in a dwelling-house, is erroneous, as such larceny is not committed "in a dwelling-house," within the meaning of section 1309.

3. Where a defendant is a witness in his own behalf, an instruction that the jury may believe his testimony or disbelieve it, according as it is or is not corroborated is erroneous.

BARCLAY, J., dissenting.

Appeal from criminal court of Pettis county; JOHN E. RYLAND, Judge.

The defendant was indicted, under the provisions of section 1309, for stealing $35, the money of one Shanklin, in a dwelling-house. Being tried, he was convicted, and, sentence having been passed upon him, he appeals to this court. According to the testimony of the prosecuting witness, the money stolen consisted of a $20 gold-piece, a $10 gold-piece, and $4 or $5 in silver. It is also shown by the testimony that both defendant and Shanklin drank very heavily on the night of the 17th of February, 1888, and that Shanklin was very much intoxicated, — so much so that he had to be helped up-stairs, fell on the floor, had to have assistance to pull his boots off, and was only able, after a struggle of several hours, to pull off his boots, which he left in the middle of the floor; and having the money before mentioned in his pockets, which he says he felt as he was going up to his room that night when about 12 o'clock they returned to the hotel where they were stopping, and in which room two other lodgers also slept, the room thus occupied containing three beds. The next morning Shanklin got up early, — as he says, before daylight, but he was evidently dazed from his night's debauch, — examined his pants, and said: "I have been robbed." "Just then," he says, "I saw a silver dollar lying on the floor. I picked it up, and said: `They didn't get it all, though; here's a dollar.' Patterson said: `Is it a dollar? Let me see.'" Witness then states he handed the dollar back to defendant over his shoulder, who took it and said, he would go down and get a drink; hurriedly left the room with the dollar; and witness, having finished dressing, went over to the police station, which it seems was close at hand, informed a couple of policemen of what had occurred, pointed out defendant as the guilty party, who was thereupon arrested. In the interim between the time he left the room where he slept and the time of his arrest he went down to a saloon, called for a drink of whisky, and gave a $20 gold-piece to the bar-keeper, saying he had nothing smaller, and was in a hurry, receiving in change $19.85. This, with 25 cents he said Shanklin had given him, made $20.10. With this sum he then went over to the hotel, (Shanklin meanwhile having gone after an officer,) threw a silver dollar on the counter, and asked the proprietor to give it to Shanklin, saying: "I don't want his money. I'll break his d____d head if he says I stole his money." Upon being arrested, defendant was informed that Shanklin claimed that he had some $35 stolen from him. At first defendant denied having the money, but upon being searched, and $19.10 found upon his person, he said, "I got his money," stating at the same time that he himself had been robbed of $20 some days before, and took this "to play even."

There was considerable testimony showing that it was daylight when the coin picked up from the floor was taken, and there was the testimony of two witnesses, the defendant and another, showing that such coin was a $20 gold-piece, and not a silver dollar, and defendant when on the stand stated that he paid for the drink of whisky which he took that morning with the $20 gold-piece, because he wanted to take Shanklin back change for a dollar, so that he would not suspect him, as he knew that Shanklin thought he only got a dollar from him. Defendant further stated that the $20 gold-piece was all the money he took from Shanklin.

This, in substance, was the testimony, and at its close the court gave, at the instance of the state, the following instructions: "No. 1. The court declares the law to be that if the jury find and believe from the evidence that at any time within three years next before the 4th day of April, 1888, at the county of Pettis and state of Missouri, the defendant stole, took, and carried away thirty dollars or more of the money of the witness Shanklin, with intent to convert it to his own...