State v. Zehnder

• Decision Date: 26 May 1910
• Citation: 228 Mo. 310,128 S.W. 960
• Parties: STATE v. ZEHNDER.
• Court: Missouri Supreme Court

128 S.W. 960

228 Mo. 310

STATE v. ZEHNDER.

Supreme Court of Missouri, Division No. 2.

May 26, 1910.

1. ANIMALS (§ 11) — CHANGING BRANDS— CONSTRUCTION OF STATUTE—"LARCENY."

Rev. St. 1899, § 1903 (Ann. St. 1906, p. 1302), enacted in 1835, provides that if a person alter the marks of any animal the subject of larceny, being the property of another, with intent to steal or convert it to his own use, he shall be guilty of larceny, and punished in the same manner as if he had feloniously stolen such animal. Prior to the revision of 1879, grand larceny was the felonious stealing, taking, and carrying away of goods worth $10 or more or any horse, sheep, hog, etc., belonging to another and by the revision the act was amended by striking out the words "sheep" and "hog," and by increasing the value of the stolen property to $30. Held, that section 1903 does not limit the offense to the felonious marking of any animal the subject of grand larceny, but merely the subject of larceny, which includes petit larceny, and the fact that the amendment of the statute excluded hogs and sheep from the list of animals, the stealing of which constituted grand larceny, per se, did not operate to exclude such animals under the value of $30 from the operation of section 1903.

2. CRIMINAL LAW (§ 5) — DEFINITION OF CRIMES.

If one alters the marks on another's hogs, intending thereby to convert them to his own use, he commits either actual or attempted larceny at common law, and it is competent for the Legislature to define such conduct as larceny, and to require it to be punished as grand larceny, by requiring it to be punished in the same manner "as if he had feloniously stolen the said animal."

3. ANIMALS (§ 13) — CHANGING BRANDS — PROSECUTION—INSTRUCTION.

In a prosecution under Rev. St. 1899, § 1903 (Ann. St. 1906, p. 1302), providing that if a person alter the mark of any animal the subject of larceny, being the property of another, with intent to steal or convert it to his own use, he shall be guilty of larceny and punished as if he had feloniously stolen the animal, the felonious intent being an essential element of the offense, the court should require the jury to find that the marking was with a felonious intent to steal it, or should define those elements of larceny which are equivalent to a felonious intent, and a charge that if accused did unlawfully place his own marks on the hogs in question, the personal property of another, with intent to unlawfully steal and convert them to his own use, he should be found guilty of grand larceny, was erroneous as omitting such element.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

John G. A. H. Zehnder was convicted of altering marks on animals with intent to steal them, and he appeals. Reversed, and remanded for a new trial.

E. R. Lentz, for appellant. E. W. Major, Atty. Gen., and John M. Atkinson, Asst. Atty. Gen., for the State.

GANTT, P. J.

On January 26, 1909, the grand jury of Butler county returned an indictment against the defendant in two counts. The first count charged that the defendant did on or about the first day of October, 1908, at the county of Butler, state of Missouri, in and upon the ears of two hogs, all of the value of $35, the personal property of one Andrew J. Hopkins, then and there being, did feloniously place and affix his own marks to wit, a crop off of each ear and a split in the right ear with intent on the part of him, the said John G. A. H. Zehnder, then and there feloniously to steal and convert the said two hogs aforesaid to his own use. The second count charged the defendant with grand larceny of the said hogs on the said day. At the close of the testimony the state entered a nolle as to the second count of said indictment. The defendant was tried by a jury and found guilty on the first count, and his punishment assessed at two years in the penitentiary. After an unsuccessful motion for a new trial and in arrest of judgment, the defendant was sentenced, and from that sentence has appealed to this court.

On the part of the state the evidence tended to show that the prosecuting witness Hopkins and the defendant lived within a quarter of a mile of each other, and near to the city of Poplar Bluff in Butler county, at the date of the alleged marking of the two hogs described in the indictment. The prosecuting witness Hopkins testified that he bought the two hogs from a man by the name of Rogers. He agreed to pay him $5 for the two. When he got possession of the hogs they were on Coffman's place, and Rogers helped him get them up. The proof was very indefinite as to when prosecuting witness Hopkins bought the hogs from Rogers, but it was a short time before G. D. Coffman claimed them, which was in the fall of 1907. It appears from the evidence that as a matter of fact Hopkins never paid Frank Rogers anything for the hogs, and Rogers testified that he never claimed the hogs and never sold them to Hopkins; that the hogs were running around on Coffman's place and Hopkins requested him to help him get them up and he did so. There was evidence that Hopkins had said the hogs were strays. After the prosecuting witness Hopkins had taken the hogs to his home, G. D. Coffman claimed them. The prosecuting witness refused to give them up to Coffman when the latter laid claim to them, and thereupon Coffman brought a replevin suit before the justice, and after the writ was served the prosecuting witness agreed to and did pay all the costs of the replevin suit, and bought the hogs from Coffman. There was much testimony on both sides indicating that these hogs had run at large in the woods in the neighborhood in which the prosecuting witness Hopkins, Coffman, and the defendant lived. The prosecuting witness claimed that the hogs strayed away from his home on the 9th of June, 1908, and he made search for them in vain. Along in the fall of that year he testified that he was traveling along the road adjoining the defendant's premises, and he saw these two hogs lying in the defendant's hog lot. He called them and they came to him, and he knew they were his hogs. He discovered however, that more of their tails had been cut off, but he saw that they were his hogs. He then gave the following description of the identification of his hogs by others, and what occurred at the defendant's home: "I got G. D. Coffman to come and identify them. I got Mr. Otto Witte also to come. They both said they would swear they were my hogs; that was Saturday evening and Monday morning I went up to get my hogs, and see if Zehnder would give up my hogs. In the meantime I heard Mr. Wical had one gone, so Mr. Wical came over Monday morning to go up there and see if that was his hog. I and Mr. Wical and Mr. T. B. Hilton and Otto Witte went up there, and when I got there Mr. Zehnder had just fed the hogs and had started out with two buckets of water. I made inquiry of the hogs, described them. He said he had some there, and if they were mine I could have them; they were not his. He took us through the gate to where the hogs were, and Wical said, `That's mine,' and I said, `These two over there are mine.' I made inquiry of Zehnder how he came to get them and he said they got into his field and he put them up and I asked him if he did not know my hogs. He said, `No,' that he was mistaken that time (referring to a previous conversation in which the defendant had told him that he had seen his hogs and knew them and if he saw them again would let him know) that he described those hogs to him, that he did not know them. He said he had made inquiry of nearly everybody to find out about those hogs, but he did not make inquiry of him. I told him they were mine. He said if they were mine I could have them, they were not his."

With the assistance of the men who went with him the prosecuting witness took the hogs out of the enclosure of the defendant and turned them out again. These hogs were of the black Poland China stock with a few white marks over them, a very few. One was more white than the other. There was practically no dispute as to the defendant marking the hogs with his mark. The defendant testified in his own behalf that he marked the hogs, but at the time he did so he believed that they belonged to his wife, and he was still of that opinion. His wife also testified that she thought the hogs in dispute belonged to her at the time they were marked. She stated that some two or more years prior thereto she had some small pigs that strayed away, and afterwards these two hogs came up with her husband's hogs and came into his enclosure, and that she called them and they came to her, and that after they had come back several times with her husband's hogs, they put them in the hog pasture, and later on her husband marked them with his mark. The defendant also offered evidence tending to prove his reputation as a law-abiding citizen in the community was good. Several of the witnesses on behalf of the state also testified that his reputation as a law-abiding man was good. On the part of the state there was some evidence tending to show that after this dispute came up the defendant's reputation as a law-abiding man was not good. Coffman testified that prior to the time he sold these hogs to the prosecuting witness Hopkins, they had been running in the woods south of the Nickey farm and between that and Poplar Bluff.

George Purdam and Ed Purdam testified that they knew Coffman and knew the hogs in controversy, that they had seen them in defendant's field, and that at a time some time before Coffman sold them to Hopkins these witnesses were cutting wood down in the Nickey field, and that Coffman rode up to the outside of the fence and the hogs were there on the outside of the fence, and they asked Coffman whose hogs they were and he looked at them and said: "They are my stock of hogs, but they are not mine. I do not know whose they are." There was a direct contradiction between the...