State v. Rader

• Decision Date: 24 November 1914
• Parties: THE STATE v. CLAUDE RADER, Appellant
• Court: Missouri Supreme Court

171 S.W. 46

262 Mo. 117

THE STATE v. CLAUDE RADER, Appellant

Supreme Court of Missouri, Second Division

November 24, 1914

Appeal from Boone Circuit Court. -- Hon. David H. Harris, Judge.

Reversed and remanded.

N. T Gentry for appellant.

(1) The State's instruction number 1 is erroneous, because: (a) It omits the all important part of the definition of larceny to-wit the words "with a felonious intent." In case where the defendant was tried for stealing a steer, these words were termed "the chief ingredient of grand larceny," and a conviction was set aside on account of the failure to use said words in the State's instruction. State v. Weatherman, 202 Mo. 9. In another larceny case, it was said that "the felonious intent is the material ingredient of the offense." State v Gray, 37 Mo. 463. In speaking of an instruction which omitted the felonious taking of the money alleged to have been stolen, and in reversing the case, this court said "Attention to the numerous adjudications of our own courts would prevent errors like this." State v. Rutherford, 152 Mo. 132; State v. Richmond, 228 Mo. 366; State v. Casey, 207 Mo. 11; 2 Bishop's New Crim. Law, sec. 811; State v. Moore, 101 Mo. 328; State v. Storts, 138 Mo. 137; State v. Waghatter, 177 Mo. 689; State v. Gresser, 19 Mo. 247; State v. Campbell, 108 Mo. 614. This has been the settled law of Missouri for seventy years past, ever since Judge Scott said, "To constitute this offense, therefore, in any form, there must be a taking from the possession, a carrying away against the will of the owner, and a felonious intent to convert it to the offender's use." Witt v. State, 9 Mo. 671; 3 Chitty, 675. It must also be remembered that our statute, in defining this crime, uses the words, "feloniously stealing, taking and carrying away." R. S. 1909, sec. 4535; 18 Am. & Eng. Ency. Law, 500, 502; Moore v. State, 166 S.W. (Tex. Cr. App.) 1153; 8 Ency. Ev. 122; State v. Zehnder, 228 Mo. 327; State v. Littrell, 170 Mo. 13; State v. Waller, 174 Mo. 518. (b) For the further reason that there was no evidence sufficient to justify the giving of an instruction on the subject of grand larceny. There was no evidence of the contents of the sacks that were taken by the witness Bell, neither was there any evidence of the value of the contents: and without the oats and ground alfalfa, the property was of a value less than thirty dollars. When there is no evidence of the value of the article alleged to have been stolen, it is error to instruct on the subject of grand larceny. R. S. 1909, sec. 4535; State v. Murphy, 141 Mo. 270; State v. Norman, 101 Mo. 524. (2) State's instruction number 2 is erroneous as it assumes that Bell did take the property of W. L. Green. An instruction in a criminal case should not assume a fact that it is necessary for the State to prove. State v. Ferguson, 221 Mo. 529; State v. Drew, 179 Mo. 324; State v. Bonner, 178 Mo. 432; State v. Marsh, 171 Mo. 529; State v. Hecox, 83 Mo. 538; State v. Dillihunty, 18 Mo. 331; State v. Wheeler, 79 Mo. 366; State v. Evans, 158 Mo. 606; State v. Bobbitt, 215 Mo. 43; State v. Vickers, 209 Mo. 33; State v. Langley, 248 Mo. 554. Instruction 2 is also erroneous in that it says "prior to the wrongful taking of the property of W. L. Green." It should have said "prior to the felonious taking, stealing and carrying away of the property of W. L. Green." The property might have been taken wrongfully by Bell, and yet not stolen, as defined by our criminal code. Authorities supra. "To prove the offense of the principal, it is necessary to establish not only his criminal acts that go to make up the felony, but also the criminal intention on his part." 1 Ency. Evid. 73; People v. Collins, 53 Cal. 185; Walker v. State, 118 Ga. 758; State v. McKean, 36 Iowa 343. Said instruction is further erroneous in that it says, that the jury must find that the defendant "counseled and advised with said Bell," and that he "solicited him to take the same." Even if Bell did take the property with a felonious intent, it was necessary for the State to prove, and for the jury to find, that the defendant feloniously aided, counseled and solicited him to do the taking. This important factor (the criminal intent) is entirely omitted from this instruction. State v. Branch, 237 Mo. 252. All of our authorities hold that a defendant, in order to be held liable for the acts of the accomplice, must have had the "felonious intent." State v. Shour, 196 Mo. 219; State v. Dalton, 27 Mo. 16; Wharton's Crim. Ev. (8 Ed.), sec. 440; State v. Kuhlman, 152 Mo. 103; State v. Umble, 115 Mo. 461; State v. Hollenscheit, 61 Mo. 308; State v. Stacy, 103 Mo. 13; R. S. 1909, sec. 4898; State v. Hayes, 105 Mo. 84; State v. Hang Tong, 115 Mo. 389; State v. Douglass, 44 Kan. 625. And finally, instruction 2 is erroneous because it assumes that defendant intended for Bell to take Mr. Green's property. The jury should have been required to find that, by the words, "If you will go out there, I am satisfied you can get some feed out there," the defendant intended for the witness Bell to feloniously steal said feed. The court should not have assumed, as it did by this instruction, that those words were either counsel, advice, encouragement or command to Bell to commit larceny. 1 Ency. Evid. 78; Hicks v. United States, 150 U.S. 449; State v. Hickam, 95 Mo. 322. (3) The trial court erred in not giving an instruction on the subject of petit larceny. The State's evidence showed that the witness Bell took some alfalfa, corn, oats, etc., and the witness Crump testified that, in his opinion, that amount of feed was worth $ 33.30. But it must be remembered that he did not know the quantity of oats in the eight sacks, and no other witness testified to the quantity. As there was no proof as to the amount contained in the eight sacks of oats, and as this is a criminal prosecution in which nothing can be taken by inference, the oats should be eliminated in the total valuation. State v. Gabriel, 88 Mo. 643; 1 Greenl. on Evidence (14 Ed.), sec. 6a; State v. Narzinger, 220 Mo. 53; State v. Lingle, 128 Mo. 540; State v. Ruck, 194 Mo. 430; Hamilton v. People, 113 Ill. 38; State v. Shields, 110 N.C. 497; R. S. 1909, sec. 4549; State v. Norman, 101 Mo. 524; State v. Sharp, 106 Mo. 109; State v. Murphy, 141 Mo. 270; 8 Ency. of Evid. 140; Dubois v. State, 20 Fla. 841; State v. Wood, 46 Iowa 116; Brooks v. State, 28 Neb. 389; People v. Kehoe, 19 N.Y.S. 763. It is the duty of the trial court to instruct on all questions of law arising in the case, whether asked to do so or not. R. S. 1909, sec. 5231; State v. Nicholas, 222 Mo. 434.

John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.

(1) It is not necessary that an instruction be as broad as the charge in an indictment or information, and it is not essential that it contained the word "feloniously." The term "feloniously" is one of classification only and is therefore essential as a rule in the information, in order that the offense may be classified, but is not essential in the instruction. State v. Helton, 234 Mo. 557; State v. Richmond, 228 Mo. 362; State v. Cummings, 206 Mo. 613; State v. Rowland, 174 Mo. 373; State v. Woodward, 131 Mo. 369; State v. Barton, 142 Mo. 450; State v. Miller, 159 Mo. 113. It is not essential that an instruction on grand larceny should contain the words "without the consent of the owner." State v. Richmond, 228 Mo. 365; State v. Waller, 174 Mo. 518. It is not essential that an instruction on grand larceny contain the words "with the felonious intent to convert the same to his own use." The words "stolen" and "steal" charge a defendant, in a larceny charge, with the essential criminal intent, and mean a taking away "knowingly without any claim or pretense of right" and "with intent wholly to deprive the owner of the goods," or "to convert them to the use of the taker." Kelley's Criminal Law and Procedure (3 Ed.), sec. 651; Kelley v. State, 14 Ind. 36. Webster defines the word "steal" as "To take and and carry away feloniously; take clandestinely without right or lief, as the personal goods of another." This is the common acceptation of the word "steal," and the ordinary layman when he hears that one "did steal" is impressed with the idea that the property of another has been taken and carried away without right or leave with the intent to convert the same. State v. Fitzpatrick, 32 A. 1072; 2 Abbott's L. Dict., p. 503; Anderson's L. Dict., p. 973; Black's L. Dict. (2 Ed.), p. 1109; 3 Strande's Judicial Dict., p. 9134; In re Gannett, 39 P. 496; Alexander v. State, 12 Tex. 540; People v. Tomlinson, 508 Cal. 19; State v. Dewitt, 142 Mo. 76. To steal in many jurisdictions has been defined to mean "to take and carry away feloniously" and "take without right or leave and with intent to keep wrongfully." Baldwin v. State, 46 Fla. 115; State v. Dewitt, 152 Mo. 85; People v. Lammerts, 164 N.Y. 137; Hughes v. Terr., 8 Okla. 28, 31; State v. Smith, 31 Wash. 245; State v. Richmond, 228 Mo. 362. (2) The court did not commit error in refusing appellant's requested instruction number 2. This instruction defines an accomplice, and states that an accomplice is equally guilty with a party committing the theft. Sec. 4898, R. S. 1909; State v. Tobie, 141 Mo. 556.

FARIS, J. Walker, P. J., concurs in separate opinion; Brown, J., concurs in result.

OPINION

FARIS, J.

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...