State v. Riley

• Decision Date: 02 June 1890
• Citation: 13 S.W. 1063,100 Mo. 493
• Parties: STATE v. RILEY.
• Court: Missouri Supreme Court

13 S.W. 1063

100 Mo. 493

STATE v. RILEY.

Supreme Court of Missouri.

June 2, 1890.

CRIMINAL LAW — LARCENY — INDICTMENT — EVIDENCE — VARIANCE.

1. Failure to set out in an indictment for larceny the Christian name of one of two persons therein alleged to have been joint owners of the stolen property is not ground for quashing the indictment, since Rev. St. Mo. 1879, § 1812, provides that it shall only be necessary to allege in such indictment the property to belong to one of such joint owners, and section 1820 provides that, on trial of a felony, a variance between the statement in the indictment and the proof, in the Christian name or surname of a person, shall not be grounds for an acquittal unless the court shall find that the variance is material to the merits of the case, and prejudicial to the defense.

2. A variance between the indictment and the proof, on trial for larceny from a dwelling-house, in that the former alleges the house to belong to one person, while the proof shows that it is owned by another jointly with him, is not fatal, since Rev. St. Mo. 1879, § 1812, provides that, where any offense shall be committed upon or in relation to any property belonging to several owners, the indictment shall be deemed sufficient if it allege such property to belong to any one or more of them.

3. On indictment for larceny from a dwelling-house, though the proof shows that the value of the article stolen was less than $30, an instruction to find defendant guilty of petit larceny only is properly refused, since, under Rev. St. Mo. 1879, § 1309, larceny from a dwelling-house is grand larceny, irrespective of value.

4. On indictment for larceny, it appeared that defendant, who was 24 years old, had for several years used intoxicating liquors to excess; that he would go off several times a month, and stay on a spree for several days; that he had several times had delirium tremens, the last time being a few months before the larceny. But the evidence did not show that he was insane, or that his mind was affected so that he could not tell right from wrong. He was drunk a few days before the larceny, but three witnesses, to whom he sold the stolen article on the day of the larceny, testified that he was then sober. Held, that an instruction to find defendant not guilty if, by reason of his intemperance, he did not have mind enough at the time of the larceny to know right from wrong, was properly refused.

Appeal from circuit court, Buchanan county; SILAS WOODSON, Judge.

Woodson & Woodson, for appellant. The Attorney General, for the State.

RAY, C. J.

Defendant was indicted, tried, and convicted in the Buchanan county criminal court of the larceny of a shotgun from a dwelling-house, and his punishment assessed at imprisonment in the penitentiary for three years. Omitting caption, and signature of the prosecuting attorney, the indictment in the cause is as follows: "The grand jurors of the state of Missouri, within and for the body of the county of Buchanan aforesaid, being duly impaneled and sworn, upon their oaths do present that James Riley, on the 15th day of May, A. D. 1889, or within a few days next before said 15th day of May, at the county of Buchanan and state aforesaid, from the dwelling-house of George W. Gibson, one double barrel shotgun, (a better description is to the grand jurors unknown,) of the value of thirty dollars, the joint personal property of George W. Gibson and W. E. Brocken, then and there being found, to-wit, in said dwelling-house and at said county, did feloniously steal, take, and carry away, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state." The evidence in behalf of the state is to the effect that Gibson, who was a man of family, and Brocken, who was single and unmarried, lived together upon a farm in Buchanan county, Mo., and were partners in managing and working the farm. Having closed up their house, said Gibson, with his wife and child, and said Brocken and a hired hand, left early on the morning of May 11th, and went to St. Joseph, Mo., for the day. The children of Gibson were sent over to their uncle's, in the neighborhood, so that no one was left at the house on said day. The doors of the house were shut, but not locked. At a point called "Frazier," on their way to St. Joe, and two or three miles from their farm, they met defendant, who asked Brocken if they were going to town, and was told that they were. Upon their return, at about 8 o'clock that same evening, they found that a shotgun, which had been left in a gun-rack over a door in the interior of the house, was missing. Between 2 and 3 o'clock in the afternoon of the same day, one Henry Cook and two others met defendant on the road, some three or four miles from the place of larceny, carrying the gun in question, which defendant represented he had taken in part payment for labor from a man at or near Plattsburg, Mo.; and, after some parley and negotiation, defendant sold the gun to said Cook for six dollars. The value of the gun was, it may be remarked, variously estimated at from $20 to $30. This evidence was not disputed or controverted.

It is practically conceded that defendant took the gun; and the only evidence in defendant's behalf was offered to show that he was not responsible for the crime, because of his...