State v. Plant

• Decision Date: 18 February 1908
• Citation: 107 S.W. 1076,209 Mo. 307
• Parties: STATE v. PLANT.
• Court: Missouri Supreme Court

107 S.W. 1076

209 Mo. 307

STATE v. PLANT.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

1. LARCENY — INFORMATION — PROOF AND VARIANCE.

In view of the Bill of Rights, art. 2, § 22 [Ann. St. 1906, p. 155], which provides that in criminal prosecutions the accused shall have the right to demand the nature of the accusation, evidence of larceny of a diamond shirt stud constitutes no proof of the larceny of a diamond ring as charged in an information, but constitutes an absolute failure of proof.

2. INDICTMENT — "VARIANCE."

Property charged to have been stolen must be set out in the indictment or information, and the law by no means recognizes it as simply a variance where the charge designates one article and the proof shows an entirely separate and distinct article, since a "variance" applies only where the proof does not strictly conform to the description of the article.

3. LARCENY — INSTRUCTIONS — RECENT POSSESSION.

In a prosecution for larceny, where it was shown that the property was taken on October 18, 1906, an instruction directing the jury that, if they find that recently after December 18, 1906, the property was found in defendant's exclusive possession, then defendant is presumed to be guilty of the theft, was erroneous, since it completely ignored the interval between the dates, and excluded such interval from the consideration of the jury in passing upon the question of recent possession.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Abraham Plant was convicted of grand larceny, and he appeals. Reversed and remanded.

This cause is brought to this court by appeal on the part of the defendant from a judgment of conviction of grand larceny in the circuit court of the city of St. Louis. The information upon which the judgment in this cause rests, omitting formal parts, is as follows: "Richard M. Johnson, assistant circuit attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the state of Missouri, upon his official oath, information makes as follows: That Abraham Plant, on the 18th day of December, in the year of our Lord one thousand nine hundred and six, at the city of St. Louis aforesaid, one diamond ring of the value of three hundred dollars, all the money, goods, chattels, and personal property of Thomas Kerr, then and there unlawfully and feloniously did steal, take, and carry away from the owner thereof, with the intent then and there to deprive the owner of the use thereof, and to convert the same to his own use, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." Upon the trial of this cause the evidence on the part of the state tended to prove that on or about the 18th day of October, 1906, in the city of Shreveport, state of Louisiana, one Thomas Kerr, while stopping at the Caddo Hotel, in said city and state, lost one diamond stud of about the value of $300. The evidence further tended to prove that said Abraham Plant was at said time a bell boy employed in said hotel; that while acting in said capacity, and while said Thomas Kerr was stopping at said hotel, the said diamond stud was missing, and that immediately thereafter said defendant was arrested and searched by the police of said city, and held in custody for several days, and finally released, there being no evidence against him that he took said diamond stud; that afterwards, to wit, on or about the 18th day of December, 1906, said defendant, Abraham Plant, came to the city of St. Louis and state of Missouri, and that on the said 18th day of December he was arrested by the police of said city and in his possession was found a diamond ring; that after the arrest and incarceration, and at the time of said trial, evidence was introduced tending to prove that the diamond in said ring was the same diamond lost by the prosecuting witness on said 18th day of October in the city of Shreveport, La. This is substantially the evidence produced on the part of the state. The defendant introduced evidence in the form of depositions of some four or five people who had known him in the city of Shreveport, and who testified that they had seen in his possession a diamond ring similar to the one in question, and had seen this in his possession some time previous to the time of his arrest for this alleged offense in Shreveport. Appellant also testified in his own behalf, stating that he had come into possession of this diamond ring some six or eight months previous to his first arrest by getting it from a jockey in the city of Dallas, in the state of Texas; that it had been in his possession and the possession of his wife ever since he secured it in Texas. Defendant also introduced three witnesses, namely, William Kranke, Julius Yeager, and M. Levy, who qualified as experts with reference to the value of diamonds, and also as to whether it is...