State v. Weatherman

• Decision Date: 05 March 1907
• Citation: 202 Mo. 6,100 S.W. 482
• Parties: STATE v. WEATHERMAN.
• Court: Missouri Supreme Court

100 S.W. 482

202 Mo. 6

STATE v. WEATHERMAN.

Supreme Court of Missouri, Division No. 2.

March 5, 1907.

1. LARCENY—ELEMENTS—FELONIOUS INTENT—INSTRUCTION —SUFFICIENCY.

In a prosecution for grand larceny, an instruction defining the offense as the wrongful and fraudulent taking the property of another

and converting the same to his own use, was erroneous for omitting the element of felonious intent to convert the property taken to the use of the offender without the consent of the owner.

2. CRIMINAL LAW — INSTRUCTIONS — OBJECTIONS—CURE BY SUBSEQUENT INSTRUCTIONS.

In a prosecution for larceny, error in an instruction defining the offense in omitting the element of felonious intent to convert the property taken to the use of the offender without the consent of the owner was not cured by a subsequent instruction which omitted to charge that, in order to complete the offense, it was necessary that the taking from the owner was without his consent.

3. SAME—REQUEST FOR INSTRUCTIONS—NECESSITY.

In a prosecution for larceny, the failure of the trial court to give the usual cautionary instruction as to the testimony of an accomplice testifying for the state was not error, though requested by defendant to instruct upon all the law of the case, where the defendant did not ask for such cautionary instruction, or call the attention of the court to its failure to instruct upon such feature of the case.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Samuel Weatherman was convicted of grand larceny, and appeals. Reversed and remanded.

Walter A. Long and J. J. Gideon, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

Defendant was convicted of grand larceny in the circuit court of Christian county, and his punishment fixed at two years' imprisonment in the penitentiary, under an information filed by the prosecuting attorney of said county charging him and Keets Weatherman and John Weatherman with having, at said county, on the 1st day of August, 1905, stolen a steer of the value of $30, the personal property of one J. F. Vaughan. The state's evidence tended to prove that J. F. Vaughan was the owner of a lot of cattle in 1904, which were being herded by one of his employés in Christian county; that this employé became demented, and the cattle scattered in various parts of the county. It was something like 15 months before Mr. Vaughan found the steer and heifer that belonged to him. The steer was worth $35. After making diligent search, Mr. Vaughan found the steer had been at defendant's place. The defendant stated that his brother, John, and son, Keets, had taken the steer away, and sold it for $30, and that he, the defendant, would like very well to compromise the case. The state's evidence further tended to show that this steer was sold to a man named Collins by the brother and son of the defendant, and that the money was collected by them, and a part of it used to pay off a note of the defendant's at the bank, and the balance taken home and kept in a trunk, with the knowledge and consent of defendant. The steer had been running on defendant's place and with the defendant's stock for something like 15 months. The defendant testified that this steer had been at his place some time, and that it was taken away by his brother and son, and that his brother said it was Joe Vaughan's steer. The defendant further testified that, the morning the steer was taken away, his brother said that it was Vaughan's rope with which he was leading the steer. Defendant further testified that he asked his son how much of the money he had spent, and learned that it was $10, and that the remainder was left in his possession. The defendant admitted that he never notified Mr. Vaughan, or asked him anything whatever about the steer. On motion of defendants, a severance was granted them, whereupon the defendant was put upon his trial, with the result as stated.

Defendant's first insistence is that the court did not correctly define grand larceny in its instructions. The only instructions given upon this feature of the case are as follows: "(2) Grand larceny, as defined in these instructions, is the wrongfully and fraudulently taking the property of another and converting the same to his own use. (3) The court instructs the jury that if you find from the evidence that Sam Weatherman, in the county of Christian and state of Missouri, on or about the 1st day of August, 1905, or at any time within three years before the filing of the information, to wit, August 26, 1905, did...