State v. Weber

• Decision Date: 08 May 1900
• Citation: 156 Mo. 249,56 S.W. 729
• Parties: STATE v. WEBER.
• Court: Missouri Supreme Court

56 S.W. 729

156 Mo. 249

STATE v. WEBER.

Supreme Court of Missouri, Division No. 2.

May 8, 1900.

HORSE STEALING — IDENTITY OF HORSE — WITNESS' BELIEF — ADMISSIBILITY — MALICIOUS MISCHIEF — FAILURE TO INSTRUCT — FAILURE TO EXCEPT — "FELONIOUSLY" — FAILURE TO DEFINE.

1. Where, in a prosecution for horse stealing, defendant testified that he had released the horse the morning after the taking, which then took the road for home, a witness' testimony that he saw defendant two days later on a horse he believed to be the same is admissible, the witness having stated why he believed so, and given the points of resemblance between the animals.

2. In a criminal trial, the admission of testimony in rebuttal, which is not strictly so, is not error, where no objection is made until near the close of such testimony, such admission being within the discretion of the trial court.

3. On a trial for horse stealing, a failure to instruct on malicious mischief is not error, malicious mischief not being a degree of larceny, and Rev. St. 1889, § 3949, and also the bill of rights, forbidding the trial and conviction of a defendant for a crime wholly different from that specified in the indictment.

4. In a trial for horse stealing, a failure to except to the court's failure to instruct on all questions of law waives an objection on appeal that an instruction as to malicious mischief was not given.

5. It is not error to fail to define the word "feloniously," used in the court's instructions on a criminal trial.

Appeal from circuit court, Dent county; L. B. Woodside, Judge.

George Weber was convicted of horse stealing, and he appeals. Affirmed.

The court gave the following instructions, numbered 1, 2, and 3, on the part of the state, to wit: "(1) The court instructs the jury that if you believe and find from the evidence that the defendant, at and in the county of Dent, and state of Missouri, in the month of April, 1899, did willfully and feloniously steal, take, and carry away one bay mare, the same charged in the indictment, with the intent at the time to convert the said mare permanently to his own use, and to deprive the owner permanently of the use thereof; and if you further believe and find from the evidence that at the time of such taking, if you find it was so taken, the said mare was the property of Lizzie W. Sankey, and of any value whatever, — you will find him guilty of grand larceny, and assess his punishment at imprisonment in the state penitentiary for a term not less than two nor more than seven years. (2) The defendant is a competent witness in his own behalf, and his testimony should be considered by you in making up your verdict; but in determining what weight you will give to his testimony you may consider the fact that he is the defendant, and on trial. (3) If you believe and find from the evidence that the defendant took the mare at the time and place charged in the indictment, with the intent at the time of such taking to convert her permanently to his own use, and to deprive the owner permanently of the use thereof and that the said mare was the property of Lizzie W. Sankey, and of some value, then the fact that the defendant turned the said mare loose would not devest such taking of its felonious character, but in such case he would be guilty of larceny, notwithstanding that he turned the said mare loose, and it was returned to the owner." To the giving of said instructions numbered 1, 2, and 3 on the part of the state, counsel for the defendant, in open court, objected and excepted at the time.

The court then gave the defendant the following instructions, numbered 1, 2, 3, 4, 5, and 6, to wit: "(1) The defendant is presumed to be innocent, and this presumption remains until the state, by evidence, establishes his guilt to your satisfaction, and beyond a reasonable doubt. If, therefore, upon a consideration of all the evidence, you have a reasonable doubt of the defendant's guilt, you should give him the benefit of such a doubt, and acquit him; but, to authorize an acquittal on the ground of doubt alone, it must be a reasonable doubt, and not the mere possibility of defendant's innocence. (2) In order to constitute larceny, the taking must be with the intent, at the time of such taking, to convert permanently to his own use, and to deprive the owner permanently of the use thereof; and if the defendant in this case took the mare in question for the purpose of riding her home, and...