The State v. Ward

• Decision Date: 14 July 1914
• Citation: 168 S.W. 940,261 Mo. 149
• Parties: THE STATE v. THOMAS WARD, Appellant
• Court: Missouri Supreme Court

168 S.W. 940

261 Mo. 149

THE STATE v. THOMAS WARD, Appellant

Supreme Court of Missouri, Second Division

July 14, 1914

Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.

Affirmed.

Barclay Fauntleroy, Cullen & Orthwein for appellant.

(1) The first instruction of the court in this case was insufficient in that it did not require the jury to find the defendant feloniously took, stole, and carried away money and property nor did it require them to find that the defendant took the property with the felonious intent to convert the same to his own use. State v. Richmond, 228 Mo. 362; State v. Weatherman, 202 Mo. 9; State v. Moore, 101 Mo. 326; State v. Campbell, 108 Mo. 614; State v. Lackland, 136 Mo. 31; State v. Rutherford, 152 Mo. 131; State v. Littrell, 170 Mo. 15; Barnes v. State, 59 N.W. 125. (2) Where the evidence on a trial is wholly circumstantial, the jury should be instructed that they should not convict the accused, unless the State has proved his guilt from the evidence beyond a reasonable doubt, by facts and circumstances, all of which are consistent with each other and with his guilt, and absolutely inconsistent with any reasonable theory of innocence. State v. Moxley, 102 Mo. 375; State v. Lackland, 136 Mo. 33; State v. Woolard, 11 Mo. 256; State v. Hill, 65 Mo. 87; State v Bobbit, 215 Mo. 43; State v. Clark, 145 Iowa 731; U.S. v. Chandler, 65 F. 308; U.S. v. Searcey, 26 F. 435. The courts have very frequently set aside a verdict of conviction of larceny where the proofs were circumstantial and not of such character as to prove, beyond reasonable doubt, that the accused and no other person committed the offense. Kaiser v. State, 53 N. W. (Neb.) 610; State v. Nesbit, 43 P. 66; McDaniel v. State, 90 S.W. 504; Roberts v. State, 40 S.E. 697; Hodnett v. State, 45 S.E. 60. (3) The evidence was insufficient to identify the money found in the possession of defendant as the money of the prosecutor, and the court erred in instructing the jury on the theory of recent possession of stolen property. Burrill on Circumstantial Evidence, pp. 453, 171, 656; Wills on Circumstantial Evidence, pp. 63, 129; U.S. v. Osgood, 27 F. Cas. 15,971a; U.S. v. Candler, 65 F. 308; Bush v. Water Co., 43 P. 68; State v. Payne, 34 P. 320; Doss v. State, 13 S.W. 788; Knoll v. State, 55 Wis. 249; Crane v. State, 111 Ala. 45; State v. Nesbit, 43 P. 66.

John T. Barker, Attorney-General, and Stephen K. Owen for the State.

(1) The first point raised by defendant is that instruction number one is defective. The purpose of instructions in any case, as stated in State v. Richmond, 228 Mo. 365, is "To guide a jury of plain men to a correct understanding of the law of the case." If this instruction meets that requirement it is sufficient, as it is not necessary that it should be framed with the technical precision of an indictment. In the present case, the court was telling the jury what was necessary for the defendant to have done in order to have committed the crime of grand larceny. Larceny has been defined since 1866 in Missouri "as the wrongful or fraudulent taking and carrying away by any one of the personal property of another from any place, with a felonious intent to convert the same to his (the taker's) own use, and make it his own property, without the consent of the owner." State v. Gray, 37 Mo. 464. The instruction complained of required the jury to find "that defendant did wrongfully take and carry away (the property mentioned) from the possession of Woodson M. Miles, with the intent to fraudulently convert the same to his own use and permanently deprive the owner of the use thereof, without his consent, and that the same was the property of Woodson M. Miles, of the value of thirty dollars or more." What necessary element is lacking in this instruction? It is true the word feloniously is not used, but the jury was told that the taking must have been wrongful, with the intent to fraudulently convert the property to defendant's own use and permanently deprive the owner of the use thereof without his consent. Our courts hold that when the word "feloniously" is used in an instruction, it is not necessary to define it. State v. Scott, 109 Mo. 226; State v. Cantlin, 118 Mo. 100; State v. Barton, 142 Mo. 450; State v. Weber, 156 Mo. 249. So we take it that if it is not necessary to define the word feloniously, when used, it is not necessary to use it. To wrongfully take and carry away the property of another from his possession with the intent to fraudulently convert the same to his own use and permanently deprive the owner of the use thereof, without his consent, expresses the animo furandi, or as the civilians express it lucri causa, and that being true, the instruction is sufficient. A very similar instruction was given by the court in the case of State v. Martin, 28 Mo. 530. That case has been affirmed in a long line of decisions. In the case of the State v. Lackland, 136 Mo. 26, Judge Gantt, commenting on that instruction, l. c. 31, says: "In that instruction was the guilty knowledge that the cattle were not his own; the criminal intent to deprive the owner of his property, and the unlawful and fraudulent conversion to his own use without the consent of the owner." (2) Defendant complains because the court did not give an instruction on circumstantial evidence. It is only in cases where the State seeks to convict on circumstantial evidence alone that it is proper to give such an instruction. That is the rule laid down in one of the cases cited by appellant. State v. Bobbitt, 215 Mo. 43. None of the other cases cited by appellant are in point, for the reason that a conviction was sought on purely circumstantial evidence. For instance, in the case of the State v. Lackland, 136 Mo. 32, Judge Gantt says: "Now, in this case Mr. Ford never saw the hogs which defendant sold to Rogers and Percy. No witness identified these hogs, or either of them, as Ford's hogs. Rogers and Percy did not know Ford's hogs. The case was one of circumstantial evidence, and the State's case depended upon the jury's finding and believing that the facts and circumstances in evidence pointed so strongly to defendant's guilt as to exclude any other reasonable hypothesis." In the case at bar there was proof that at least two of the bills stolen from prosecuting witness Miles, a twenty and a ten-dollar bill, were found in the exclusive possession of defendant, and that fact was sufficient reason for not giving an instruction on circumstantial evidence, and for giving one on the possession of recently stolen property, as will more fully appear hereafter. (3) It is contended that the evidence was not sufficient to identify the money found in possession of defendant as the money of Miles, and therefore the instruction on recent possession of stolen property was erroneous. The following cases will conclusively show that the court did not err in giving this instruction: 25 Cyc. 124; State v. Hoppe, 39 Iowa 468; Baker v. State, 80 Wis. 416; State v. Griffin, 71 Iowa 372; People v. Linn, 23 Cal. 150; People v. Wong Chong Suey, 110 Cal. 121; Bucker v. State, 26 S.W. 65; Comm. v. Montgomery, 11 Mass. 534.

ROY, C. Williams, C., concurs. Faris, J., concurs in result.

OPINION

ROY, C.

Defendant was convicted of grand larceny. Woodson M. Miles, a lawyer of Union City, Tenn., in company with W. A. Beckham of that place, arrived in St. Louis about 7:30 a. m., August 8, 1912. Miles had in his left hip pocket a leather pocketbook containing three $ 20 bills and two $ 10 bills, all new and crisp, issued by the Third National Bank of Union City, Tenn. They went into a saloon, got a drink, and Miles took out his pocketbook to pay for the drinks; but Beckham paid, and Miles replaced his pocketbook. They proceeded to take a car at Eighteenth and Market streets. Just before doing so, Miles felt his pocketbook in his pocket. There was a great crowd pushing and surging to take the car. Beckham went first, followed by two or three others ahead of Miles, who noticed the defendant deferentially yield precedence to him, and noticed that defendant crowded or was pressed close against him behind, and that there was considerable pressure on his pocketbook. Immediately on entering the car Miles felt his pocket and reported to Beckham that his money had been taken. They went down town, got breakfast, and reported the matter to the police. About an hour afterward, Miles saw defendant in the custody of the police. A $ 20 bill and a $ 10 bill, both new and crisp, issued by said bank, were taken from the person of the defendant by the police at the time of his arrest. On the trial those bills were shown to Miles and he was asked to testify whether they were the bills that he lost on the car. Objection was made on the ground that they had not been properly identified as the same money which was lost and that the question called for a mere conclusion of the witness. The objection was overruled, and he stated that they were the same. He said that he recognized them from the signatures of the officers of the issuing bank, those on the $ 20 bill being in red ink, and those on the $ 10 bill being in black ink, and from the fact that they were crisp and new, which, as the witness stated, was a rarity in his country. The witness stated that, after reporting his loss to Beckham, he asked the conductor if he saw that young man take his pocketbook. He testified that he recognized the defendant at the time of his arrest and at the trial as the same one who pressed behind him into the car. He testified: "I didn't, of course, see him actually go into my pocket and take the money out, but I saw that he was right behind me, and I know that nobody else was right behind me, and at the same time I felt...