State v. Rader

• Decision Date: 24 November 1914
• Citation: 171 S.W. 46
• Parties: STATE v. RADER.
• Court: Missouri Supreme Court

171 S.W. 46

STATE v. RADER.

Supreme Court of Missouri, Division No. 2.

November 24, 1914.

LARCENY (§ 70) — PROSECUTION — INSTRUCTION — SUFFICIENCY.

An instruction that if accused advised, procured, or commanded another to steal, take, and carry away the goods and chattels of a third person, he should be convicted is bad because not requiring the jury to find that the goods were stolen and taken away with a felonious intent, which is an element of the offense of larceny.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Claude Rader was convicted of grand larceny, and he appeals. Reversed and remanded.

From a conviction in the circuit court of Boone county of the crime of grand larceny and a sentence therefor to imprisonment in the penitentiary for a term of two years, defendant, pursuant to the usual procedure, has appealed.

The facts presented by this record, and upon which this conviction is sought to be sustained, are unique. The defendant, at the time of the commission of the larceny alleged, was, and for some days prior thereto had been, confined in the calaboose of the town of Centralia upon the charge that he had illegally sold intoxicating liquor, so that his alibi was perfect, so far as concerns his actual presence at or participation in the alleged larceny. The indictment charged that the property stolen was feed, and that it consisted of eight sacks of oats, ten sacks of alfalfa meal, ten bales of alfalfa hay, two bushels of corn, and one bale of straw. The actual larceny of this property was accomplished by one William W. Bell, who was the principal witness for the state and, in fact, the only witness who gave any testimony in any way connecting defendant with this theft. According to the testimony of said Bell he had been employed by defendant to feed and care for a number of horses owned by defendant during the enforced absence arising from the imprisonment of the latter. Defendant's horses, some seven in number, together with one of Bell's horses, were in a barn at Centralia, which barn had been rented by defendant and was in his possession. After Bell had been in charge of defendant's barn and horses for some two or three days, the feed for this stock ran short; thereupon Bell says he went to the calaboose to confer with defendant about the situation, and informed defendant that the feed was almost gone. Bell further says that defendant asked him if he knew where any feed could be obtained, and that he (Bell) replied that he did not. Thereupon, says Bell, the below quoted conversation ensued between him and defendant. Defendant asked Bell:

"`Do you know where this big barn is out here west of town of Mr. Lee Green's?' I said, `I do not.' He said, `Don't you know where that barn is out there?' I said, `No.' He said `Maybe you know it by the John Rutland's barn.' I said, `Yes; I know where that is,' and he said, `I saw Mr. Green hauling some alfalfa out there in the summer time.' He said, `If you will go out there, I am satisfied you can get some feed out there. If there is any out there, get it and bring it in and I will pay you for it, and I will allow you on what you owe me' — on a mare I bought. He said if I didn't want to take the wagon and team out there first, I could go and ride the pony out and find it. He said I might work a big brown horse with a big foot and an old sorrel horse with a bald face. I said all right, if I could find collars. I could not find a collar for the sorrel horse. I worked my grey horse and his brown horse after this feed."

Following the substance of the testimony of the witness Bell, but without further quoting his exact language, he said that he left the defendant's barn in Centralia between 12 and 1 o'clock, went out into the country near the edge of town to the barn of one W. L. Green, and there stole eight sacks of oats, ten bales (sic) of alfalfa meal, ten bales of alfalfa hay, two bushels of corn, and one bale of straw; that he loaded this feed on a one-horse wagon and drove the same into the defendant's barn (except for the loss of a portion thereof, which slipped from the wagon on the way), there unloaded it, and placed it in the hallway of said barn, and that near defendant's barn he broke the doubletree of his wagon. Bell further says that in the morning between 5 and 6 o'clock he went to the calaboose and again saw the defendant, told him fully what he had done, and that instructions were given him by the latter to unload and store the stolen feed and cover it with a tarpaulin, and to lock the doors of the barn and to fasten the windows with wire, all of which Bell did.

The witness Bell, confessedly the actual thief, was arrested for the larceny in question at about 9 o'clock on the morning following the theft. At first, and for some several days, Bell, while admitting his own guilt, denied that defendant was in any wise connected with this larceny. Subsequently, and after a few days, he changed his story and said, as he did upon trial in his sworn testimony, that defendant had been the active mover in procuring his commission of this larceny.

The defendant, testifying for himself, while admitting that Bell had called on him at the calaboose at about 5:30 o'clock in the morning following the larceny and had then confessed to him the manner in which he had obtained the feed, yet contended that the larceny was without his prior knowledge, procuration, or consent, but that on the contrary he had given Bell the money with which to purchase feed and expected him to buy feed and not steal it. Defendant also testified that Bell was stealing this feed for himself, and intended to haul it to a barn out in the country, where Bell had some horses of his own, but that he had broken a doubletree while in the neighborhood of defendant's barn, which misfortune made necessary the unloading of the feed therein, and thus explained the presence of the feed in this barn.

The bad reputation of appellant for morality and truth and veracity was shown by the state. The state was also permitted to show that the constable and various other persons "suspicioned" from the beginning defendant's connection with this larceny. Since, however, no objection was made to this outrageous sort of evidence the point is not before us for review.

The actual confessed thief Bell was likewise indicted for this larceny, and entered a plea of guilty thereto, and was by the court paroled.

The above is deemed a sufficient statement of the facts as will serve to make clear the points discussed in the opinion here. These points will be further illuminated by such statement of facts as may become necessary in the opinion.

N. T. Gentry, of Columbia, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

FARIS, J. (after stating the facts as above).

I. Instruction numbered 1, which defendant very insistently urges as erroneous, is as follows:

"The court instructs the jury that if you find and believe from the evidence, beyond a reasonable doubt, that at the county of Boone and state of Missouri, on or about the 24th day of November, 1913, one William Bell did unlawfully steal, take and carry away the goods and chattels of W. L. Green as charged in the first count of the information in this case, and if the jury further find from the evidence that the defendant prior to the stealing, taking and carrying away of the said goods and chattels advised procured, encouraged, counseled, or commanded the said William Bell to steal, take, and carry away the goods and chattels as aforesaid, and that said goods were of the value of $30 or more, then you will find the defendant guilty under the first count of the information and assess his punishment at imprisonment in the penitentiary for a term not less than two years nor more than five years."

The gravamen of defendant's objection to the above instruction is (to express it in counsel's own language) that "it omits the all-important part of the definition of larceny, to wit, the words, `with a felonious intent.'" The state contends, on the other hand, most insistently that the use of the word "steal" comports a wrongful and fraudulent taking, together with the felonious intent to convert the property in question to the use of the taker and to deprive the owner thereof permanently without his consent. Since the instruction in question uses the words "take and carry away," we need not, and we do not, take the latter words into consideration in this discussion. Concededly they would have been used in a good instruction just as they are used in this one. In other words, the state's position is that, since the word "steal," which is used in this instruction, ordinarily means and is generally understood as meaning by everybody, from the "college professor to the common laborer," to "take and carry away feloniously; to take without right or leave and with intent to keep wrongfully," there is neither verbal nor legal necessity, nor rhyme nor reason, in using the word "feloniously," or in further defining larceny, when once the word "steal" is used in an instruction in connection with the words "take and carry away," as here in this instruction. Bearing out their contention, learned counsel for the state call our attention to the meaning of the word "steal" in its plain and ordinary sense, as used in our statute, and as the same is defined by lexicographers as well as by the law writers and law dictionaries. It is defined, says counsel, by Webster's Unabridged Dictionary thus:

"To take and carry away feloniously, as the personal goods of another; to take without right or leave."

The most comprehensive definition which has been called to our attention is that found in the Century Dictionary and Cyclopedia, which defines the word "steal" to mean:

"To take feloniously; to take and carry away clandestinely and without leave or right; to appropriate to one's own use dishonestly or without...