The State v. O'Connell
| Decision Date | 31 May 1898 |
| Citation | 46 S.W. 175,144 Mo. 387 |
| Parties | The State v. O'Connell, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft Judge.
Affirmed.
John A Gernez for appellant.
(1) At common law mere choses in action, as bonds, bills and notes were not goods whereof larceny could be committed. State v. Porter, 75 Mo. 171; People v. Loomis, 4 Denio, 382; Wilson v. State, 1 Porter, 120; State v. Steffins, 132 Mo. 332. (2) Our statute has not changed the common law in this respect except as to notes which have been delivered to the payee by the maker or indorser thereof. State v. Porter, 75 Mo. 171. (3) In pleading the two different certificates (the certificate of deposit in the bank and the stock certificate) the indictment should have charged "the amount due thereon or secured thereby and remaining unsatisfied. R. S. 1889 sec. 3539; People v. Loomis, 4 Denio, 380; State v. Kroeger, 47 Mo. 530; State v. Murphy, 141 Mo. 267.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) To common law larceny, it may be said the provisions of sections 3535 and 3539 have been added, and the certificate of deposit being an obligation due from the bank and included in the statute constituting statutory larceny, it is a proper subject of larceny. Gillette's Crim. Law, sec. 535; People v. Griffin, 39 How. Pr. 475; 1 McClain's Crim. Law, 595; 1 Bishop's Crim. Proc., sec. 595; 2 Bishop's Crim. Proc., sec. 731. (2) As to the certificate of stock it may also be said that at common law it would not be a subject of larceny save as to the value of the small piece of paper represented. But under the sections above referred to, it may be said to represent an interest in property and is therefore made a subject of larceny. The value of the instrument exists not in itself, but the right which it represents. People v. Griffin, 39 How. Pr. 475; 2 Bishop's Crim. Law, 768; State v. Campbell, 103 N.C. 344; Com. v. Brettun, 100 Mass. 206; People v. Payne, 6 Johns. 103. (3) Nor can it be held that the indictment is insufficient in so far as the description of the money stolen is concerned. People v. Brown, 29 Mich. 232; State v. Hammond, 121 Ind. 512; State v. Graves, 121 Ind. 357; State v. Burnett, 81 Mo. 119; State v. Moore, 66 Mo. 372. (4) Under a statute making bills, notes, securities and evidence of interest and property subject to larceny it is not necessary to describe the instrument stolen more particularly than other property, and a description of the instrument by its usual name and the amount of the face thereof with its value is sufficient. Com. v. Brettun, 100 Mass. 206; Com. v. Whalen, 90 Va. 545; Com. v. DuBois, 50 Ala. 139; State v. Pierson, 96 Iowa 271; State v. Hall, 85 Mo. 669; State v. Brin, 30 Minn. 522; Com. v. Grimes, 10 Gray, 470. (5) The indictment charges all property stolen to be of the value of $ 500. It has been repeatedly held that in a charge of larceny of several articles it is sufficient to allege the value thereof in the aggregate. State v. Monk, 40 Ohio St. 558; State v. Brew, 4 Wash. 95; State v. Thompson, 43 Tex. 268; State v. Beatty, 90 Mo. 143; State v. Lorton, 7 Mo. 55; State v. Daniels, 32 Mo. 558; State v. Morphin, 37 Mo. 337; State v. Wilson, 45 Tex. 77. (6) The only necessary requirement to constitute grand larceny is that the value of the articles that are proven in evidence to have been stolen should aggregate a sum greater than $ 30. State v. Beatty, 90 Mo. 143; State v. Monk, 40 Ohio St. 588; State v. Buck, 46 Mo. 531; State v. Hood, 41 Mo. 363; State v. Jackson, 69 Mo. 249. (7) There is no variance between the proof and the allegation contained in the indictment so far as the alleged ownership is concerned. As to the certificate of stock the evidence discloses that it belonged to the husband of Mrs. Callie Hamilton, the prosecuting witness, although she had it in her care and custody at the time. The rule in matters of this character is that where there is ownership in one person and possession in another, as special bailee or custodian, it is optional to charge the ownership as in the real owner or in the person in possession of the property. State v. Graham, 55 N.H. 152; State v. Sullivan, 104 Mass. 552; Com. v. O'Hara, 10 Gray, 469; Com. v. Moore, 14 Mass. 217; People v. Phillips, 72 N.Y. 334; State v. Mullen, 30 Iowa 205; People v. Quinn, 132 Ill. 333; State v. Moore, 101 Mo. 316; State v. Kennedy, 31 Fla. 428; State v. Flower, 100 Ala. 96; 2 Bishop's Crim. Law, sec. 824.
On the sixteenth day of November, 1896, Mrs. Callie Hamilton, who resided at number 1827 Olive street in the city of St. Louis, while walking on Olive street between Twenty-seventh and Twenty-eighth, about 3:30 o'clock in the afternoon, saw defendant approaching her as if he recognized her and with his hand extended, as she thought, to speak to her and shake hands with her, and thinking he was an acquaintance she looked up in his face when he suddenly snatched her purse and ran away. She at once pursued him, and several men and boys joined in the pursuit but he escaped. The police department was at once notified and defendant was arrested, and Mrs. Hamilton positively identified defendant as the thief. She testified that her purse or pocket-book contained when defendant snatched it about $ 16 in cash, a certificate of deposit issued to her by the Mechanics Bank of St. Louis; ten shares of stock of the par value of $ 1,000 in the Universal Light and Power Company, a corporation organized under the laws of this State, and a ruby about three or four carats, an old family heirloom which she had never had valued. The stock she thought was worth par, as she was not aware it had either appreciated or depreciated, as the corporation was yet a new one. Her husband had paid $ 1,000 for it. The certificate of deposit was for $ 250 she had deposited in her own name in the Mechanics Bank. The stock belonged to her husband. Officer Caudell testified he saw the crowd following the man, and he answered the description of the prisoner, though he could not positively identify the prisoner as the man. Officer Badger, who effected the arrest, testified he was dressed in a brown suit corresponding to that described as worn by the party who stole the purse. John F. Frew, a witness called by defendant, testified as follows: He resided at 412 Garrison avenue, and on the sixteenth day of November, 1896, he was engaged in the carpenter business at 311 N. Leffingwell street. He remembered the larceny that occurred to Mrs. Hamilton on that day; he was standing in his shop door and saw a man running across the street with something in his hand; he thought he was after somebody, and a little boy hollowed and told him to stop him, that he had a lady's pocket-book; he tried to stop him; "I got very close to him; I saw his face a half dozen times; he went north on 28th street from Olive until he got opposite my shop, and then came across the street; he crossed the street, facing me, and ran up the alley; I followed him on up to Garrison avenue, I believe it was, and he got over the fence; the defendant there looks terribly like the man I chased; he looks very much like him; I could not swear that he is the man, but he is built a great deal like him." Mr. Camera, another witness, testified he saw the pursuit and was of the opinion that the man he saw running was not the prisoner, but he was back in his store forty feet from the door. No objections were taken to the instructions of the court, and defendant's counsel concedes they were correct. The contention of defendant is that the indictment and evidence are insufficient to sustain a conviction of grand larceny, and secondly that the judgment should be reversed on account of improper remarks made by the prosecuting attorney in misstating the evidence and in alluding to the failure of defendant to testify.
I. The indictment charges that the defendant on the sixteenth day of November, 1896, at the city of St. Louis, one pocketbook, two tax receipts, $ 27.50 lawful money of the United States, one ruby stone, one certificate of ten shares of the capital stock of the Universal Light and Power Company, a corporation organized under the laws of the State of Missouri, and one certificate of deposit of the Mechanics Bank of St. Louis, good for the payment of $ 200, the description of which said certificate of deposit is to the grand jurors unknown, all of the value $ 500, and all the money, goods, chattels and personal property of Callie Hamilton, then and there being found, feloniously did then and there steal, take and carry away with the intent then and these to deprive the owner of the use thereof and to convert the same to his own use contrary to the form of the statute in such case made and provided and against the peace and dignity of the State.
It is insisted, first, that the certificate of deposit issued by the Mechanics Bank of St. Louis to Mrs. Hamilton for the moneys deposited by her in said bank and which is alleged in the indictment to be good for the payment to her of $ 200, is not the subject of larceny under the laws of Missouri. Choses in action were not the subject of larceny at common law, but by express statute they are made so in this State. R. S. 1889, secs. 3535 and 3539. Section 3535 makes the felonious stealing of "any right in action" of the value of $ 30 grand larceny. Section 3539 is as follows: "If the property stolen consist of any bond, covenant, note, bill of exchange, draft, order or receipt, or any other evidence of debt, or of any public security issued by the United States or this State, or any instrument whereby...
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