The State v. Green

• Decision Date: 27 June 1893
• Citation: 22 S.W. 952,117 Mo. 298
• Parties: The State v. Green, Appellant
• Court: Missouri Supreme Court

22 S.W. 952

117 Mo. 298

The State v. Green, Appellant

Supreme Court of Missouri, Second Division

June 27, 1893

Appeal from Newton Circuit Court. -- Hon. Joseph Cravens, Judge.

Affirmed.

R. F Walker, Attorney General, for the state.

(1) The indictment is in the language and form approved in this state, and clearly charges the crime of which defendant stands convicted. Revised Statutes 1889, sec. 3535. (2) The instructions, when read together, correctly declare the law applicable to the case as made by the testimony to the jury. They are exceedingly favorable to the defendant. They presented defendant's theory to the jury, which, if believed by it, would have resulted in his acquittal. (3) Defendant made no complaint or objection to the remarks of the prosecuting attorney which he now assigns as error -- nor were any exceptions saved thereto. Though unwarranted, and reversible error, the exception and complaint of defendant came too late when first raised and suggested in his motion for new trial. The allegation in the motion for new trial does not import verity, nor is it proof of the statement it contains. State v. Hays, 81 Mo. 574; State v Pagels, 92 Mo. 300; State v. McDaniels, 94 Mo 301; State v. Taylor, 98 Mo. 240; State v. Bulling, 105 Mo. 204; State v. Welsor, 20 S.W. Mo. 669. Defendant will not be permitted to sit by and permit the error, if error it be, take chances upon the result of the trial, and, if convicted, then be heard for the first time to complain. State v. Welsor, supra. The evidence was ample upon every fact necessary for the state to prove, and clearly and abundantly shows the defendant to be guilty of the offense of which he was convicted. The well-established rule in this state is, that where the testimony is sufficient in the judgment of the trial court to warrant the submission of the question of defendant's guilt or innocence to the jury, and they have found him guilty, such action will not be reviewed here, unless it clearly and affirmatively appears that this discretion and judgment have been abused. No such presumption can be indulged in this case. State v. Jackson, 106 Mo. 181; State v. Howell, 100 Mo. 628; State v. Orrick, 106 Mo. 111; State v. Lowe, 93 Mo. 547; State v. Hicks, 92 Mo. 432; State v. Hammond, 77 Mo. 158; State v. Gann, 72 Mo. 374; State v. Musick, 71 Mo. 401; State v. Moxley, 115 Mo. 644. In this case the question presented to the jury was, did defendant steal the property described in the indictment, or did he buy it, without knowledge of the theft, of Points? The jury decided from the evidence, beyond a reasonable doubt, that defendant stole the property as charged in the indictment. This, being the triers of the fact, they they had a right to do, and, no error appearing, their finding should not be disturbed.

OPINION

Gantt, P. J.

At the March term, 1891, of the Stone county circuit court, Jackson Green, the defendant, and Andrew Points were jointly indicted for grand larceny of five yearling steers, the property of William Copeland. At the same term they were arraigned and entered a plea of not guilty. The cause was then continued until the September term of said court, at which term a severance was granted Andrew Points.

Upon a trial of this defendant at the September term, 1891, the jury failed to agree and were discharged, and the cause continued until the March term, 1892, at which term the defendant was again placed upon trial, and the jury again failing to agree were discharged, whereupon the defendant filed an application for a change of venue, which was granted and the cause transferred to the Newton circuit court. At the May term, 1892, of the Newton circuit court, the defendant was tried, convicted, and his punishment assessed at two...