The State v. Zehnder
| Decision Date | 26 May 1910 |
| Citation | 128 S.W. 960,228 Mo. 310 |
| Parties | THE STATE v. JOHN G. A. H. ZEHNDER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. J. C. Sheppard, Judge.
Reversed and remanded.
E. R Lentz for appellant.
(1) The indictment in this case is fatally defective, in that it fails to allege that the alleged marking of the hogs was done without the owner's consent. The statute makes the marking or branding of animals with intent, etc., a species of larceny. In every case of larceny the want of consent of the owner of property alleged to have been stolen is an essential element of the offense. It is a fact which is an essential element in a prima-facie case of guilt and must be stated; nothing is to be left to intendment. All that is necessary to be proved must be alleged. Bishop on Crim. Prac. (3 Ed.), sec. 519; State v. Terry, 109 Mo. 619; State v. Benson, 110 Mo. 30; State v Kirby, 115 Mo. 447; State v. Stowe, 132 Mo 206; State v. Krueger, 134 Mo. 273; State v. Woodward, 156 Mo. 147. (2) In this case the defendant was indicted for one offense, i. e., that of marking two hogs with intent to convert to his own use, etc., and the instructions of the court directed the jury to find him guilty of another and different offense, to-wit, grand larceny. A man cannot be indicted for one offense and convicted of another, if the provisions of section 22 of our Bill of Rights are to be obeyed respecting the nature and cause of the accusation. Sherwood's Com. Crim. Law, p. 228; State v. Arter, 65 Mo. 654; State v. Stone, 68 Mo. 104; State v. Gabriel, 88 Mo. 642; State v. Harmon, 106 Mo. 650. (3) Where the defendant claims to own the property alleged to have been stolen, and there is no substantial evidence of any criminal intent, the court should not send the case to the jury. In this case the defendant claimed his wife owned the hogs; there was no evidence, either substantial or otherwise, of any criminal intent, hence the court erred in overruling the demurrer to the testimony requested at the close of all the evidence. State v. Cloybaugh, 122 S.W. (Mo. App.) 319; State v. Mathews, 20 Mo. 57. (a) The question in such cases is not as to the effect of the act done, but as to the animus which prompted its commission. State v. Pitt, 58 Mo. 558; State v. Johns, 124 Mo. 385; State v. Riley, 4 Mo.App. 397; State v. Cunningham, 154 Mo. 179. (b) The taking of property of another under fair color of right or title is not larceny. Witt v. State, 9 Mo. 671; State v. Homes, 17 Mo. 379; State v. Shermer, 55 Mo. 83; State v. Weatherman, 202 Mo. 16; State v. Walker, 174 Mo. 523. (4) Section 1903, R. S. 1899, evidently refers to cases where the animal is killed, or as here, marked, before there is any taking or asportation, and not to cases where, as here, the taking or asportation was complete before the killing or marking takes place. Here the evidence shows that the hogs were first taken and confined at least two weeks before they were marked. Hence defendant could not have been convicted under this section, and the court should have so instructed the jury and directed a verdict for the defendant. State v. Crow, 17 S.W. 748. (a) The testimony in this case shows that if the defendant was guilty of any offense, he was guilty of petit larceny and could not be convicted under the indictment in this case. (b) The animus quo and all actions and words by which that is demonstrated form a part of the res gestae. Garber v. State, 4 Coldw. 161. (c) In this case the statement of the defendant at the time of taking up and marking the hogs, "that he thought they were his wife's hogs," is explanatory of, and gives color to, his acts in taking up and marking the hogs, and shows that he had no criminal intent at the time of the commission of these acts. State v. Gabriel, 88 Mo. 639. (5) From the revision of the statute in 1879, until the passage and taking effect of the Act of 1909, stealing a hog was not grand larceny unless it was of the value of thirty dollars or more. Respondent's instruction asked the court so to declare the law. All the evidence shows the value to be less than thirty dollars. Hence the refusal to give this instruction was error, as was, also, giving the first instruction for the State. R. S. 1899, sec. 1898. (6) The first instruction given on behalf of the State is erroneous in many respects. First. It omits the essential element of felonious intent by the defendant to feloniously convert the property to his own use. This court has always held that an instruction in a larceny case, which omits this element, is erroneous. State v. Weatherman, 202 Mo. 10; State v. Speritus, 191 Mo. 24; State v. Littrell, 170 Mo. 15; State v. Rutherford, 152 Mo. 124; State v. Lackland, 136 Mo. 30; State v. Moore, 101 Mo. 516; State v. Ware, 62 Mo. 602; State v. Shermer, 55 Mo. 83; State v. Gray, 37 Mo. 463; Witt v. State, 9 Mo. 671. Second. This instruction also fails to tell the jury that the taking from the owner must be without consent. This was absolutely necessary to complete the offense. Unless it was taken without the consent of the owner it is not larceny. State v. Weatherman, 202 Mo. 10; State v. Speritus, 191 Mo. 36; State v. Waller, 174 Mo. 522. Third. By this instruction the court tells the jury that the stealing or marking of a hog of any value whatever, no matter how small, is grand larceny. This is not the law, or at least was not when this offense was alleged to have been committed. R. S. 1899, sec. 1898. (7) Criminal statutes should not be extended or enlarged by judicial construction so as to embrace offenses or persons not plainly within their term. To make the defendant guilty of grand larceny in this case requires a most violent enlargement, by judicial construction, of section 1903, upon which this prosecution is based. State v. Howard, 137 Mo. 297; State v. Gretzner, 134 Mo. 527; State v. Schuchmann, 133 Mo. 123; State v. Reid, 125 Mo. 48; State v. Bryant, 90 Mo. 537; Bishop on Stat. Crimes (2 Ed.), 196-227; Sedgwick, Constr. of Stat. and Const. Law, sec. 280. (a). A penal statute is not to be regarded as including anything which is not clearly and intelligently described in its very words, as well as manifestly intended by the Legislature. Dudley v. Tel. Co., 54 Mo.App. 391; Guaranty Co. v. Kansas City, 200 Mo. 168. (b). Criminal statutes should be strictly construed against the State, and liberally construed in favor of innocence and liberty. State v. Rutherford, 152 Mo. 131; State v. McCance, 110 Mo. 398; State v. Gray, 37 Mo. 463.
Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
(1) The offense of marking another's hogs with intent to steal or convert the same to such person's own use is purely a statutory crime, and when the statute individuates such crime the offender has proper notice of the nature of the charge against him, and it is sufficient to charge the offense in the language of the statute or in terms substantially equivalent. The indictment here follows the language of the statute and individuates the crime charged and fully informs appellant of the same. The indictment follows the approved forms as given by Kelley and Sherwood and is sufficient in every particular. Kelley's Crim. Law (2 Ed.), sec. 671; Sherwood's Law, p. 229; Joyce on Indictments, secs. 371 et seq.; State v. Edgen, 181 Mo. 589; State v Miller, 190 Mo. 449; State v. Wilkerson, 170 Mo. 184; State v. Krueger, 134 Mo. 274; State v. Davis, 70 Mo. 467; State v. Kesslering, 12 Mo. 565; Parks v. State, 159 Ind. 211; State v. Runzi, 105 Mo.App. 319; Commonwealth v. Campbell, 22 Pa. S.Ct. 98; Whitlock v. Commonwealth, 89 Va. 337; Antle v. State, 6 Tex.App. 202; State v. Edmunds, 127 Ia. 333, 30 Cyc. 365; Bishop's Forms (2 Ed.), sec. 999. (2) Section 1903 makes it a felony for any person to mark an animal belonging to another, which animal is the subject of larceny, with the intent to steal or convert the same to his own use. The statute further provides that such person for such offense "shall be adjudged guilty of larceny and punished in the same manner as if he had feloniously stolen said animal." To adjudge a person guilty of larceny means the same as that the offense is the offense of larceny, and to say that he shall be punished in the same manner as if he had feloniously stolen said animal, means that he shall be punished as for grand larceny. The word "feloniously" as used in the criminal code means that the offense is a felony. R. S. 1899, sec. 2393; Bishop on Stat. Crimes (2 Ed.), sec. 454. The very acts charged in the indictment are made actual larceny by the statute. (3) The correctness of the abstract proposition of law as stated by appellant in his third assignment of error, no one disputes. But learned counsel for appellant overlooks the strong evidence and facts in proof in this cause showing that appellant marked the hogs with the intent to steal and convert them to his own use. The fact that appellant told the prosecuting witness when he came for the hogs: "He said he had some there, and if they were mine, I could have them, they were not his," clearly shows that appellant did not believe the hogs belonged to his wife as he testified in the trial of this cause. The further fact that appellant hid the hogs away in the small pen after he had marked them, shows beyond doubt that he was trying to hide his crime of theft. While the hogs were in this small enclosed pen, and hid away from the view of those passing, the prosecuting witness made inquiry of appellant if he had seen the hogs, to which appellant replied that he had not, although he had informed the prosecuting witness that he knew his hogs. The proof in this case bristles with "ear-marks" of appellant's guilt. By...
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