State v. Webster

• Decision Date: 13 June 1950
• Docket Number: No. 2,No. 41574,41574,2
• Citation: 230 S.W.2d 841
• Parties: STATE v. WEBSTER
• Court: Missouri Supreme Court

Page 841

230 S.W.2d 841

STATE v. WEBSTER.

No. 41574.

Supreme Court of Missouri, Division No. 2.

June 13, 1950.

Wilbur F. Daniels, Fayette, for appellant.

J. E. Taylor, Attorney General, Robert L. Hyder, Assistant Attorney General, for respondent.

BARRETT, Commissioner.

Stanley Eugene Webster was charged with stealing two hogs, the property of Mr. Lawrence E. Tutt. He was found guilty and sentenced to two years' imprisonment. He admits that he took the hogs and sold them but he claims that he did so at the direction of his father who was entitled to the hogs and that, therefore, he could not be found guilty of grand larceny. Mo.R.S.A. Sec. 4456. He claims, in the circumstances, that there was no evidence that he intentionally ('feloniously') took the hogs and that he should therefore be discharged. State v. Claybaugh, 138 Mo.App. 360, 122 S.W. 319.

Stanley's father, Clyde Webster, was a tenant on Mr. Tutt's farm. During the first year, 1946, Clyde was a tenant under an oral lease by which he was to receive $75 a month, one cow to milk and two meat hogs. In March 1947 Mr. Tutt and Clyde entered into a written agreement by which he was to receive $75 a month, the privilege to milk one cow and 'two (2) two hundred (200) pound hogs for meat providing the party of the second part shall remain in the employment for the full term of this contract.' Eugene testified that at his father's direction he took two 225 pound hogs to Boonville and sold them for $115.86. He cashed the check, retained $5 for himself and gave the balance of $110.86 to his father. He testified that the hogs were sold pursuant to the written contract. In support of Eugene's defense his father testified that he was entitled to the hogs under the contract and that on the 18th day of January 1948 he instructed Eugene to sell the hogs. There was evidence on behalf of the State, however, that Clyde had butchered the two hogs he was to have under the contract. Furthermore, when Eugene was taken into custody he denied knowing anything about the hogs and on February 2d gave a statement in which he tacitly admitted that the hogs had been stolen. In short there was evidence from which the jury could find that Eugene intentionally or feloniously took the hogs and, consequently, the trial court did not err in refusing to direct a verdict for him. State v. Busch, 342 Mo. 959, 119 S.W.2d 265; State v. Simpson, Mo.Sup., 237 S.W. 748; State v. Bloomer, Mo.Sup., 231 S.W. 568.

Since he is not entitled to be discharged, he contends that he is entitled to a new trial because the court failed to instruct the jury 'upon all questions of law arising in the case * * * necessary for their information in giving their verdict * * *.' Mo.R.S.A. Sec. 4070. Specifically, he contends that the court's instructions ignored his defense or claim of right to sell the hogs--the testimony that his father was entitled to them under the agreement. State v. Wright, 352 Mo. 66, 73, 175 S.W.2d 866. The principal instruction hypothesizing Eugene's guilt is a conventional grand larceny instruction but it contains the clause 'without any honest claim thereto' and the State contends that that clause is a sufficient submission of his defense and fulfills the statutory requirement that the court instruct the jury in writing upon all questions of law necessary for their information in giving their verdict.

The convictions in State v. Busch, supra, and State v. Slusher, 301 Mo. 285, 256 S.W. 817 and State v. Collins, 292 Mo. 102, 237 S.W. 516, were reversed and remanded because the instructions ignored the defenses that the defendants claimed the property as of right or innocently hauled it for another. But the instructions in those cases do not contain the phrase 'without any honest claim thereto' and the State contends that the instructions would not have been erroneous if they had included that phrase. In the larceny cases of State v. Bloomer, Mo.Sup., 231 S.W. 568; State v. Stark, Mo.Sup., 249 S.W. 57, 59 and State v. Mathes, Mo.Sup., 281 S.W. 437, the instructions contained the phrase 'without any honest claim thereto' and the convictions were affirmed. But the question presented here was not involved in those cases and in the Mathes case there was no evidence in support of the defendant's claim of right. In State v. Smith, 354 Mo. 1088, 193 S.W.2d 499 and State v. McMurphy, 324 Mo. 854, 25 S.W.2d 79, the court properly hypothesized for the jury the facts constituting grand larceny on the one hand and upon the other hand appropriately hypothesized the defendants' innocence if the defendants restrained the cattle as strays in one case and innocently took them in the latter case. In State v. Homes, 17 Mo. 379, 57 Am.Dec. 269, it was held to be reversible error when the court refused the defendant's proffered instruction that he should be acquitted if the jury believed his claim of right to the hogs. In State v. Johnson, 334 Mo. 10, 64 S.W.2d 655, the defendant was charged with forging a note. His defense was that he had authority to sign the note. The instruction hypothesizing the defendant's guilt ignored his defense of authority to sign and it was held that the court had erred in failing to instruct upon all questions of law arising from the evidence. 'On principle, whenever the court in a criminal case undertakes to instruct on a question of law for the guidance of the jury 'in giving their verdict,' the instruction should guide them fairly, should present both sides of a proposition if it has two sides, and this is so whether the attention of the court is drawn to the matter by a request from either the state or the defendant, or whether the court proceeds upon the matter of its own motion.' State v. Harris, 232 Mo. 317, 321-322, 134 S.W. 535, 536. In point of fact Eugene did not have or make 'any honest claim' of right to the hogs. His defense and the evidence in support of it was that his father was entitled to the hogs and that he innocently took them to Boonville and sold them at his father's request. If the jury believed his evidence he did not intentionally ('feloniously') steal the hogs and was not guilty of grand larceny. The instructions should plainly and fairly hypothesize that defense as they did his guilt. State v. Wright, supra; State v. Johnson, supra; State v. Smith, supra; State v. McMurphy, supra; State v. Harris, Mo.Sup., 267 S.W. 802; 52 C.J.S., Larceny, Sec. 150, page 999.

Because of the court's failure to properly instruct the jury upon all questions of law arising in the case the judgment is reversed and the cause remanded.

WESTHUES and BOHLING, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.

TIPTON and LEEDY, JJ., concur.

ELLISON, P. J., dissents in separate opinion filed.

ELLISON, Presiding Judge (dissenting).

The principal opinion reverses and remands the cause on the appellant's assignment that the State did not 'instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict'--as required by Sec. 4070(4), R.S.1939, Mo.R.S.A. I do not agree. The particular instruction condemned is the State's principal instruction No. S-1 as follows: 'If upon consideration of all the evidence and in the light of the court's instructions, you find and believe that the defendant, Stanley Eugene Webster, either alone or with another, at the County of Howard and State of Missouri, on or about the 31st day of January, 1948, without any honest claim thereto, did feloniously steal, take and carry away certain hogs, to-wit: two Duroc Jersey sows weighing approximately 225 pounds each, of the total value of $115.00, the personal property of Lawrence E. Tutt, with the felonious intent to convert the same to his own use and permanently deprive the owner thereof without his consent, then you will find the defendant guilty as charged in the information and assess his punishment at imprisonment in the State Penitentiary for a term of not less than two years nor more than five years, and unless you so find, you will acquit the defendant. As used in the foregoing instruction, felonious means unlawfully and against the admonitions of the law.' (Italics mine)

The facts were that the father of the defendant-appellant was tenant on the farm of one Tutt, and the State's contention was that the hogs belonged to the landlord Tutt. The defense was that under the lease of the farm the father as tenant was to have two hogs for butchering; and that he as owner of the two hogs involved, directed his son, appellant, to sell them at...