State v. Shermer

• Decision Date: 31 January 1874
• Parties: STATE OF MISSOURI, Defendant in Error, v. W. SHERMER, AND JAS. SHUMAKER, Plaintiffs in Error.
• Court: Missouri Supreme Court

55 Mo. 83

STATE OF MISSOURI, Defendant in Error,

v.W. SHERMER, AND JAS. SHUMAKER, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Cole Circuit Court.

E. L. King & Brother, for Plaintiffs in Error.

I. If the defendants come into the possession of the horses lawfully (and there is no question on this point), it will not be larceny to afterwards conceive the intent to convert them to their own use. (State vs. Conway, 18 Mo., 321; State vs. Williams, 35 Mo., 229.)

H. Clay Ewing, Att'y Gen'l, for Defendant in Error.

I. Intent is the essence of the crime of larceny, but it is not necessary that it should be found at the time of taking the property. It has been held by this court, that, where one comes in possession of property lawfully and afterwards conceives the idea of stealing, he is guilty of larceny. (Morton vs. State, 4 Mo., 46.)

II. There is no law nor common justice in support of the decision of the court in the case of State vs. Conway, 18 Mo., 321, and it is only justified by the circnmstances in the case. The court admits the crime and then tries to excuse it.WAGNER, Judge, delivered the opinion of the court.

The defendants were tried, convicted and sentenced to the penitentiary for the crime of grand larceny. It appears from the record, that one Marshall sold and delivered to the defendants two horses, one wagon and some harness, for which they were to pay him in work, and that they were to be considered the property of Marshall till paid for. The defendants, after they received possession of the property, did work at different times, and paid some of the purchase money, but after having had possession for several months, and, without paying the whole of the price agreed upon, they took the horses and wagon and started for Lebanon, in Laclede County, ostensibly to obtain work on the railroad. They traveled on the plain road, in open daylight, without haste or concealment. Marshall, finding that they were gone, pursued and arrested them, brought them back and had them indicted in Cole County for larceny, At the time they were arrested, they frankly admitted that the property still belonged to Marshall, and said that, on their arrival at Lebanon, they had made arrangements to send it back.

Marshall, who was sworn on behalf of the State, was permitted to give his version of the terms of the contract of sale, and a witness was introduced by the defendants in reference to the same matter. He swore, that he had heard Marshall and the defendants talk about the sale, and then was asked by defendants' counsel, if he had heard Marshall say that he had sold the team to defendants, to state upon what terms he said he had sold the team. Strange as it may seem, the court sustained an objection to this question and ruled it out. For what reason, it is a little difficult to understand. Marshall had been allowed to testify freely and fully what he considered to be the contract, but, when the defendants attempted to show what were the terms agreed upon, in the only manner in which it was permissible for them to show that fact, they were stopped by the court, and the testimony was excluded. This was manifestly erroneous.

The defendants offered in evidence declarations by them, as explanatory of their motives and designs, when they were about to leave home. But this the court excluded. The evidence was clearly inadmissible. The defendants could not make evidence for themselves by adducing their own declarations. But they went further and offered to show that they had made arrangements with a third party to bring the team back after they had driven it to Lebanon, and this offer was refused. I think they should have been permitted to introduce the testimony. The evidence did not simply go to their words, but to their acts also, and was competent to explain their conduct, and show their intention at the time of their departure.

Numerous instructions were given and refused, and many of them had no bearing whatever upon any issue involved in the case. It is only necessary to notice one given for the State, and one refused for the defense, to show the theory upon which the court tried the case. For the State, the court gave the following instruction: “The jury are instructed, that, if they believe from the evidence, that the said horses, wagon and harness were, by the contract of sale, not to be the property of the defendants until they were paid for, then the jury are instructed, that,...