State v. Price

• Decision Date: 25 July 1941
• Docket Number: 37546
• Citation: 153 S.W.2d 353,348 Mo. 361
• Parties: The State v. Everett Price, Appellant
• Court: Missouri Supreme Court

153 S.W.2d 353

348 Mo. 361

The State v. Everett Price, Appellant

No. 37546

Supreme Court of Missouri

July 25, 1941

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Reversed and remanded.

Roy McKittrick, Attorney General, and Max Wasserman, Assistant Attorney General, for respondent.

(1) The verdict is in proper form and responsive to the issues. State v. Stewart, 44 S.W.2d 100; State v Meadows, 331 Mo. 533, 55 S.W.2d 959. (2) Instruction 1 properly declares the law in defining grand larceny. State v. Rader, 262 Mo. 117, 171 S.W. 46; State v. Gochenour, 225 S.W. 690; State v. Mathes, 281 S.W. 437; State v. Frost, 289 S.W. 895. (3) Instruction 1 relating to the verdict was proper. State v. Conway, 241 Mo. 271, 145 S.W. 441; State v Daugherty, 259 S.W. 787; State v. Culbertson, 74 S.W.2d 375. (4) An instruction may refer to another instruction for definition of terms. State v. Storey, 274 S.W. 54; State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22; State v. Farrar, 285 S.W. 1000. (5) Failure to instruct that appellant's possession or recent possession of property raised no presumption of guilt, was not error where appellant failed to prepare and submit such instruction. State v. Park, 322 Mo. 69, 16 S.W.2d 30; State v. Day, 95 S.W.2d 1183. (6) A general objection to testimony constitutes no objection at all. State v. Lamb, 278 S.W. 1009; State v. McGuire, 327 Mo. 1176, 39 S.W.2d 523; State v. Batey, 62 S.W.2d 450. (7) Argument of the prosecuting attorney not preserved in bill of exceptions is not reviewable. State v. Neely, 56 S.W.2d 64.

OPINION

Leedy, J.

The Prosecuting Attorney of Greene County filed an information jointly charging defendant and one Leroy Ringenberg with the burglary and larceny in having, on December 30, 1939, broken into J. A. Koch & Sons' Tire Exchange at Springfield, and stolen therefrom certain automobile tires. Upon his trial, appellant was found not guilty of the burglary charge, but was convicted of grand larceny, and his punishment assessed at imprisonment in the penitentiary for a term of two years. After an unavailing motion for new trial he appealed, but he has not favored us with a brief. We, therefore, look to his motion for new trial for his assignments of error.

No point is made touching the sufficiency of the evidence to make a case for the jury, or to support the verdict. We observe in passing that such point could not be successfully maintained, as the evidence is abundant to sustain the charge.

I. The objections to the State's instructions Nos. 1 and 2 may be considered together inasmuch as they raise substantially the same question. No. 1 was the State's main instruction, the first part of which submitted the issue of burglary in the second degree, as to which defendant was acquitted, as hereinabove noted. The assailed portion, relating to the charge of grand larceny, reads as follows: "You are further instructed that if you find and believe from the evidence that the defendant, Everett Price, at the County of Greene and State of Missouri, on or about the 30th day of December, 1939, did steal, take and carry away the tires mentioned in the evidence, and that the same were the property of J. A. Koch, J. A. Koch, Jr. and L. P. Koch, partners, doing business as the J. A. Koch & Sons Tire Exchange, and were worth $ 30.00 or more, then you will find the defendant guilty of grand larceny etc."

It is contended that the instruction is deficient and erroneous in that it does not properly define the offense of grand larceny. Specifically the complaint is that it does not require the jury to find the taking to have been done feloniously, nor with the felonious intent to convert the tires to defendant's own use without the consent of the owner.

"In a case involving larceny the offense should be defined. Manifestly this may be done either by a separate instruction, as was approved in the case of State v. Gray, 37 Mo. l. c. 464, or by appropriately incorporating an apt definition of larceny in the main instruction, as was done in the case of State v. Yates, 159 Mo. 525, 60 S.W. 1051." [State v. Rader, 262 Mo. 117, 171 S.W. 46.] The later cases hold it is unnecessary to use the specific word "felonious" or "feloniously" in defining the intent with which the taking is accomplished if synonymous words are used [State v. Rader, supra; State v. Ward, 261 Mo. 149, 168 S.W. 940; State v. Yates, supra; State v. Tipton, 307 Mo. 500, 271 S.W. 55], or, if the jury is required to find facts sufficiently constituting the offense [State v. Mathes (Mo.), 281 S.W. 437; State v. Frost (Mo.), 289 S.W. 895]. The following from the Rader case is quoted with approval in the Tipton case, "This intent may be aptly defined by terms indicating the wrongful and fraudulent, or criminal nature of the taking, coupled with words charging the taking as being without the owner's consent and with the fraudulent intent to convert the property to the use of the taker and to deprive the owner thereof permanently."

We have been cited to no case, nor have we been able to find one in our reports which upholds an instruction such as the one now under consideration. Our statute [Sec. 4456, R. S '39, Sec. 4064, Mo. Stat. Ann., p. 2865] defining the offense of grand larceny, insofar as here pertinent, reads as follows: "Every person who shall be convicted of feloniously stealing, taking and carrying away any money, goods, rights in action, or other personal property, or valuable thing whatsoever of the value of thirty dollars or more, . . . belonging to another, shall be deemed guilty of grand larceny." In reviewing the history of this section, and the presence, purpose and meaning of the word "feloniously" therein, Judge Faris in the Rader case, supra, pointed out that throughout "the statute's existence in its present form [now more than one hundred twenty-five years] . . . this court has by its decisions required that instructions defining this crime make necessary the finding of a felonious intent," citing many cases holding, in substance and...