State v. Roswell

• Court: Missouri Court of Appeals
• Writing for the Court: Nortoni
• Citation: State v. Roswell, 133 S.W. 99, 153 Mo. App. 338 (Mo. App. 1910)
• Decision Date: 30 December 1910
• Parties: STATE v. ROSWELL.

133 S.W. 99

153 Mo. A. 338

STATE v. ROSWELL.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

1. LARCENY (§ 7)—ESSENTIALS—OWNERSHIP.

To constitute "larceny," the thing stolen must be the property of another; but either general or special ownership may be sufficient.

2. LARCENY (§ 40)—PROOF — OWNERSHIP.

Ownership of property stolen must be proved as charged, except that there may be an immaterial variance under the statute.

3. LARCENY (§ 40)—PROOF — ESSENTIALS — OWNERSHIP.

To convict of larceny of money from a pocketbook, ownership of the money must be proved as charged; proof of ownership of the pocketbook being insufficient.

4. CRIMINAL LAW (§ 325)—EVIDENCE—PRESUMPTIONS—REBUTTAL.

The presumption of accused's innocence of stealing money of a particular person from a pocketbook cannot be overthrown by a presumption that that person owned the money because it was in a pocketbook shown to be his.

Appeal from St. Louis Court of Criminal Correction; Benj. J. Klene, Judge.

Joseph Roswell was convicted of petit larceny, and he appeals. Reversed and remanded.

Thos. B. Estep, for appellant.

NORTONI, J.

Defendant was convicted of the offense of petit larceny, and from that judgment prosecutes an appeal.

One David Sorrells, from whom the money is alleged to have been stolen and in whom the property right is laid, gave testimony for the state as follows: Sorrells said he lived at the Buckingham Annex, and upon leaving there about 7 o'clock on the morning of July 16th he had a $10 bill in his pocketbook, which pocketbook he carried in his hip pocket. On arriving at Eighteenth street about 7:30, he left the Laclede car, on which he was riding, with the purpose to transfer on a Park Avenue car going north on Eighteenth street. Upon alighting from the Laclede car, he saw defendant and one Downey standing on the corner. When the Park Avenue car approached from the south, he, in company with several others, was in the act of boarding the same, and felt himself pushed by defendant and Downey immediately behind him, and, indeed, felt defendant's hand or arm in the region of his back. Both defendant and Downey boarded the car as he did, and rode a couple of blocks north when they left it. After defendant and Downey had left the car, the witness missed his pocketbook, in which was contained the $10 bill, and he surmised that the men who pushed him on boarding the car had gotten it. Witness knew he had a $10 bill in his pocketbook on leaving his boarding place about 7 o'clock, and knew both the bill and pocketbook were missing from his pocket about 30 minutes thereafter, which was a few minutes after defendant and Downey left the car on which he was riding. On complaint being made to the police, a description of the two men was given, and they were arrested a few days thereafter at Forest Park Highlands. There is no evidence that the money or pocketbook was found upon either. Defendant Roswell was found guilty, and his punishment fixed at one year in the workhouse, notwithstanding the master of the Union Market gave testimony positively for him to the effect that at the time in question defendant was engaged at his usual occupation in cleaning up the market, where it is said he worked every day. At best, it must be said that there is only slight evidence to support the judgment of conviction; but we regard the identity of defendant, his being present at the point in question, and the matter of sleight of hand performance which operated to relieve Sorrells of his pocketbook, as concluded by the judgment, for these were matters to be determined by the court from the facts and circumstances in proof as detailed by the witnesses on the stand.

However, the judgment must...