The State v. Collins
| Decision Date | 18 February 1922 |
| Citation | 237 S.W. 516,292 Mo. 102 |
| Parties | THE STATE v. WALTER COLLINS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Sterling H. McCarty Judge.
Reversed and remanded.
Sam J Corbett and Shelley I. Stiles for appellant.
(1) The verdict of the jury is against the evidence and against the law under the evidence, is for the wrong party, and should have been for the defendant, finding him not guilty. The defendant is indicted for stealing a cow, grand larceny under Sec. 4535, R. S. 1909, now Sec. 3312, R. S. 1919, All the evidence in the case shows that the cow was lost, and the defendant, if guilty of anything, was guilty of the fraudulent conversion of lost property under Section 3322. A party indicted under Section 3312 cannot be convicted under evidence making a case under Section 3322, that is to say, one indicted for grand larceny under Section 3312 cannot be convicted under evidence making a case for the fraudulent conversion of lost property under Section 3322. State v. Gabriel, 88 Mo. 631; State v. Arter, 65 Mo. 653; State v. Harmon, 106 Mo. 635. To constitute larceny under Section 3312 property taken by the thief must have been taken from the possession of the owner or his bailee. State v. Taylor, 136 Mo. 66. The elements of the offense of larceny as contemplated by this section remain the same as at common law, and both at common law and under the statute there must be a trespass. State v. Copeman, 186 Mo. 108. Taking lost property with intent to keep it, is larceny only where it is shown that the defendant knew who the owner of the property was at the time it was taken. State v. McCann, 19 Mo. 249. (2) Instruction 1 is erroneous for the reason that it does not require the jury to find that the defendant took the cow from the possession of Chas. Ward, nor that he took it from the possession of any one, in other words, does not require the jury to find there was a trespass by defendant in the taking. The elements of the offense of larceny, as contemplated by the statute, remains the same as the common law, and both at common law and under the statute there must be a trespass. State v. Copeman, 186 Mo. 108. Said Instruction 1 is erroneous is that it does not require the jury to find the cow was taken by stealth, feloniously taken, but only requires them to find that she was wrongfully taken. State v. Rader, 262 Mo. 132; State v. Baker, 264 Mo. 354. (3) Instruction 2, on the question of flight, is erroneous for the reason there was no evidence in the case upon which to predicate said instruction. Wann v. Scullin, 210 Mo. 429; Progress Brick Co. v. Gratiot Brick Co., 151 Mo. 501; Kingman v. Mach. Co., 150 Mo. 282; 38 Cyc. 1618. (4) It was error for the court to fail to instruct the jury upon the question of defendants honesty and good faith, and lack of criminal intent to steal the cow, as the court is required by statute in all felony cases, whether requested or not, to instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict. Sec. 4025, R. S. 1919; State v. Taylor, 118 Mo. 153; State v. Conway, 244 Mo. 271. In the case at bar the question of the intent, honesty and good faith of the defendant was the sole defense, and the instructions given wholly disregarded that defense. This would be error even in a civil case. The record shows that the defendant saved exceptions to the failure of the court to properly instruct the jury on all the law in the case necessary to aid the jury in arriving at a fair and impartial verdict, and again called the court's attention to such failure in the motion for new trial, This was all that was necessary in a felony case. State v. Cantlin, 118 Mo. 100; State v. Vaxton, 126 Mo. 500; State v. Barnett & Baker, 203 Mo. 640; State v. Pfeifer, 267 Mo. 23.
Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
(1) Appellant was properly charged and convicted of grand larceny under Sec. 3312, R. S. 1919. When an estray is taken up by one who has, at the time of the taking, the felonious intent to convert the same to his own use, it is larceny. The ownership draws along with it the possession under such circumstances. State v. Martin, 28 Mo. 536; State v. White, 126 Mo. 597; State v. Lackland, 136 Mo. 30; Stack v. State, 63 Ind. 285; Com. v. Mason, 105 Mass. 163; State v. Bloomer, 231 S.W. 568. (2) The court did not commit error in the giving of Instruction 1. The words "did wrongfully take and carry away one cow with the intent to fraudulently convert the same to his own use and permanently deprive the owner thereof without his consent, and that the same was the property of Chas. Ward," as used in said instruction indicate the wrongful and fraudulent intent and are sufficient to show that the taking was without the owner's consent. State v. English, 228 S.W. 751; State v. Rader, 262 Mo. 134; State v. Burgess, 268 Mo. 415; State v. Massey, 274 Mo. 589; State v. Reagan, 217 S.W. 84. (3) Instruction 2 on the subject-matter of flight was properly given and is in approved form. State v. Smith, 114 Mo. 416; State v. Soper, 207 Mo. 515. (4) Appellant's assignment that the court erred in refusing and failing to instruct the jury on the question of defendant's honesty and good faith and lack of criminal intent to steal the cow in question, is without merit. This phase of the case was properly covered by Instruction 1.
RAILEY, C. White and Reeves, CC., concur.
Defendant, Walter Collins, and one Lonnie Fewell were jointly charged in an information filed in the Circuit Court of Pemiscot County, Missouri, on November 3, 1920, with the crime of grand larceny, in that, on the -- day of July, 1920, at Pemiscot County aforesaid, they feloniously stole, took and carried away a cow, the property of one Charlie Ward, of the value of fifty dollars. A severance was granted and, on November 16, 1920, a jury found defendant Collins guilty of grand larceny and assessed his punishment at imprisonment in the penitentiary for a term of two years, and judgment was rendered accordingly.
The evidence on behalf of the State tends to show, substantially, the following facts: That Charlie Ward, who lived near Steele in Pemiscot County, Missouri, in July, 1920, was the owner of a large short-horn Durham red cow, about six years old; that she disappeared, and was found on the premises of one Sanders, who lived near Holland in said county; that Sanders bought said cow from defendant Collins; that Ward commenced an action against Sanders to recover possession of said cow, and Sanders turned her over to him; that after selling the cow to Sanders, the defendant left Missouri and went to the State of Arkansas, where he remained until his arrest; that said cow was held at one time by Williams, who treated her as a stray, and de-horned her to save his own cattle from injury; that defendant claimed to be the owner of said cow, while in possession of Williams, and urged him to turn over the possession of same to him (defendant); that he threatened to have Williams arrested, if he did not turn over the cow to him; and took her from William's possession; that said cow had horns about one foot in length when Williams de-horned her; that she was taken from the possession of Williams in June or July, 1920; that Ward purchased the cow from Tom Trimm, who, with his wife, identified her as the cow he had sold Charlie Ward; that she had some scars on her right side caused by hauling her on a sled; that this was the same cow Ward got from Sanders; that the value of said cow was $ 100.
The evidence on behalf of defendant tended to show he had been inquiring for a red heifer that had been gone about two years; that the cow in question is the same cow that Lonnie Fewell bought from defendant Collins; that W. H. Collins, the father of appellant, knew the cow in controversy, and felt pretty certain that he had raised her; that she strayed off about two years before the trial; that he gave this cow to the defendant; that at that time, the cow had nice straight horns, but was afterwards de-horned by Williams; that after Ward brought an action of replevin against Sanders to recover the cow, defendant's father advised the boys to pay up the cost, and let Ward have the cow; that defendant's folks gave Sanders back his money.
Appellant testified in his own behalf, that he knew the cow in question; that she was given to him by his father when she was two years old, past; that she strayed away that he looked for her and finally found her in possession of Mr. Williams; that her horns had been cut off; that it was the same cow his father had given him; that he got her from Williams, brought her back home, and contracted to sell her to Lonnie Fewell, after which he made arrangements to let Sanders have her; that he (defendant) owed Sanders $ 23.90, and Sanders wanted his money; that appellant had no other way of paying him; that he and Fewell made a trade, whereby appellant let Sanders have the cow, and paid Lonnie Fewell back $ 15; that at the time he took the cow from Williams, he believed her to be the same cow his father gave him; that defendant, on the advice of his father, W. H. Collins, gave Sanders his note for the amount Sanders had paid for the cow, signed by himself, Fewell and W. H. Collins, secured by a mortgage on a team of mares; that the above note had been paid at the time of trial; that after this settlement, defendant worked about one week in said county, and he and Fewell then went to Arkansas, about thirty miles from where they lived, to work; that Ward then swore out a warrant for them, and they were arrested on August 15, 1920. De...
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