State v. Ware

• Decision Date: 31 May 1876
• Citation: 62 Mo. 597
• Parties: STATE of MISSOURI, Respondent, v. WILLIAM WARE, Appellant.
• Court: Missouri Supreme Court

62 Mo. 597

STATE of MISSOURI, Respondent,

v.WILLIAM WARE, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Livingston County Circuit Court.

Collier, Dixon & Dixon, for Appellant.

I. The declarations of Ware to Francis and others were improperly admitted in evidence, because they were extorted by fear, and made under circumstances calculated to produce fright and terror in said Ware. (State vs. Brockman, 46 Mo., 566, and authorities cited.)

II. The court erred in refusing to allow appellant to prove the statement as made by him to Coy and Carpenter on the 1st day of June, 1875, relating to the possession of the mare in question, showing where he caught her, and for what purpose, and that he made no attempt to conceal the fact that he had that day taken her on the prairie. (3 Greenl. Ev., § 157.)

III. The instruction, concerning the county where the mare was taken, or to which it was brought, is objectionable, because there was no evidence on the subject, and the indictment was not framed to cover such a proposition. (Wagn. Stat., 1089, § 19.)

IV. If the original taking was without any felonious intent, appellant was guilty of a trespass only. (State vs. Conway, 18 Mo., 321; State vs. Sherman, 55 Mo., 83.)

V. The indictment is insufficient. It charges appellant with stealing “one bay mare, of the goods and chattels of one Alfred Mennich,” when, by the statute in such cases, the mare ought to have been designated in the indictment as “belonging to” the said Alfred Mennich. The words “belonging to” imply an owner, and the words “goods and chattels” do not.

VI. The whole testimony in the case fails to show that any offense beyond a mere trespass was committed at all. (3 Greenl. Ev., § 161; 2 Bish Crim. Law., § § 863, 755.)

Jno. A. Hockaday, Att'y Gen'l, for Respondent.

I. The confessions of the defendant were properly admitted to go before the jury. They were entirely voluntary. (Hawkins vs. State, 7 Mo., 190.)

II. The statements of the accused to third parties as to how he came in possession of the stolen property, were clearly inadmissible. A party cannot make statements exonerating himself from guilt, and introduce the same before a jury as evidence of his innocence. The statements sought to be proved were no part of the confession, and constituted no part of the res gestæ, and were therefore inadmissible. (19 Mo., 365.)

III. The indictment is good. The omission of the words “belonging to” is supplied by the use of other language meaning the same thing. (25 Mo., 426; 48 Mo., 93; 15 Mo., 515; Whart Am. Crim. Law, §§ 402, 1811.)

WAGNER, Judge, delivered the opinion of the court.

The defendant was indicted and convicted of grand larceny for stealing a mare, and sentenced to the penitentiary for two years. The questions raised in this court are; the validity of the indictment; the action of the court below in admitting and excluding testimony; the giving and refusing instructions; and the overruling of defendant's motion for a new trial.

The indictment charges defendant that “one bay mare of the value of one hundred dollars, of the goods and chattels of one Alfred Minnick, then and there being found, feloniously did steal, take and carry away,” etc. The statute defines grand larceny to be the felonious stealing, taking and carrying away of the money, goods and personal property, belonging to another. (Wagn. Stat., 456, § 25.) The pleader in the indictment here charges, that the mare was the property of Minnick, instead of alleging, in the precise language of the statute, that she belonged to him. But this will not vitiate the indictment, as a statutory offense is substantially charged. The exact words of the statute are not used, but words of equivalent import are employed, and that is all that is necessary.

It appears that the mare, charged to have been stolen, was found tied in the woods some distance from the road, and some men went armed to the vicinity of the place and concealed themselves, and waited to see who would come and get her. In a short time the defendant approached, riding another horse, and a gun was levelled upon him, and he was ordered to dismount and surrender himself. This he did willingly, and told the men, if they would wait, he would tell them all about the affair. He then stated, that he had been walking, hunting his own horses, and becoming tired, he had found the mare running on the range and caught and rode her; that afterwards, fearing that his riding her without authority might create suspicion, he had tied her up and determined to wait till late in the evening, and then get her, and turn her loose where he found her. His counsel objected to this statement being given in evidence, because it was not voluntary, but the court overruled the objection. There is nothing in the record to show that it was not purely and wholly voluntary. No threats were made against the defendant whatever; no inducements of any kind were held out to him, nor had any of the persons present any authority. They did not arrest or detain him, or exercise any coercion over him; they separated and went to their homes, and he was permitted to do the same thing. What he said, he said of his own free will and accord, and there is nothing in this evidence which brings it within the rule prohibiting the admission of involuntary confessions.

The defendant offered to prove that on the same day, whilst riding along the road, he was invited by a neighbor and acquaintance to stop and stay all night with him, and he refused, and told him as a reason for his refusal, that he had...