Wein v. State

• Decision Date: 31 March 1851
• Citation: 14 Mo. 125
• Parties: WEIN v. STATE OF MISSOURI.
• Court: Missouri Supreme Court

14 Mo. 125

WEIN

v.STATE OF MISSOURI.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

SHREVE, for Appellant. The main point insisted on by the defendant (plaintiff in error), is, that under this evidence the jury ought not to have found him guilty, and the court ought to give a party a new trial when the weight of evidence clearly shows that the jury either misunderstood or evaded the evidence. This court repeatedly decided that though the jury are the judges of facts in the case, that when they have found manifestly against the evidence, or the weight of evidence, they will grant a new trial. State v. Bird, 1 Mo. R. 416 Archlold, 98-9.

This appeal is taken because of the merits of the case. Wein is innocent of this charge in fact, and innocent under the evidence, and has been convicted through the refusal of the court to grant the instruction asked by the defendant (which will be hereafter noticed), and which refusal by the court below was equivalent to an instruction to the jury that they ought to believe the evidence of the prosecutor, Goldsmith. The court will bear with me while I refer to that testimony (Goldsmith's), as it involves the propriety, but as I conceive not the legality of the instruction below referred to, and which was overruled by the court below. This witness identifies emphatically three head of cattle, which he says were stolen from his pasture; which cattle he had not seen for a week after the same were slaughtered, skinned, and the offal therefrom, including the heads, which were skinned, and deposited upon the cattle potter's field. He recognizes them by no particular marks, can give no description of them further than that the horns of one were neat and nice; the horns of another not exactly alike; and the other he does not and cannot tell how he recognizes it. I regret that the urgency with which he was pressed for particulars by which he identified them cannot be preserved in a transcript. This identifying took place, too, several days after they had been in common with many others deposited upon this horned golgotha. He also swears that defendant had no cattle, and never had had in his pasture--a fact controverted by both Bogue and Ranall. He also swears, no one ever sold him any cattle that were in his pasture--a fact which it is impossible he should or could know. Goldsmith differs from the next witness introduced by the State in the description of the cattle killed. And the court will observe that the cattle charged in the indictment to have been stolen, were five white and black, five spotted, five yellow, five white cows, and five cows the color of which is not given. Goldsmith swears the cows which he identified by their skinned heads, were one red heifer, one brindle heifer, and one red cow with a white back. A total variance from those charged in the indictment.

Based upon this testimony, and the manner of the witness from which says Starkie, “much may be gathered,” but which cannot be embodied in a transcript, the defendant asked the court to instruct the jury, “If you believe from the evidence that the witness, Goldsmith, willfully stated any “material fact” in the case “falsely,” the jury are authorized to discredit the whole of his testimony.” To support this instruction the court referred to 1 Starkie's Ev. 582. We insisting that the circumstances, the evidence as stated, fully warrant this instruction, even if it were a question of propriety to be determined by the court, which is denied. At any rate it should have been given by the court, and left to the jury to apply the facts.

The remaining point to which the court is invited, is the overruling by the court of the motion in arrest. It is needless to say this was the proper mode to reach the defect sought to be remedied. An indictment should set forth the offense, with particularity, so as to enable the defendant to defend every allegation therein. This indictment is multifarious, uncertain and unprecedented; and the result shows the evidence neither for the State, nor for the defense applicable to it. To show the certainty required in an indictment, the court is referred to Wharton's Cr. L. 81; Jim v. State, 3 Mo. R. 45.

LACKLAND, for The State. We pass by the plea in abatement, simply remarking that it is bad. It presents a question of law, and not one of facts, and alleges insufficiency of allegations in indictment. This, if true, is not available by plea in abatement, by motion to quash, demurrer, or motion in arrest. Defendant waived his plea in abatement, by pleading over to the merits.

There is no error in the instruction given, and if there were error, defendant has waived his right, because the record does not show that any exceptions were taken to the instructions given. The court did not err in refusing the instructions asked by the defendant. The giving of such instructions is a matter of discretion with the court. The propriety of giving such instructions can only be made manifest upon the trial, by the demurrer of the witness and the matter testified to by him, or from the fact that he has been impeached. From these facts alone, the court in its discretion has to say whether such instructions were applicable. If not applicable by the existence of one of the above reasons, then the instruction asked contains mere abstract law; and the record does not show that any such instruction was applicable.

The court did not err in refusing to grant a new trial. The evidence supports the charges and no error was committed by the court. The court did not err in overruling the motion in arrest. The allegations in the indictment are sufficient. The property stolen is described under the name of cow, a term specific, and in itself sufficient, and the color of the cows is also alleged. The court in the case of State v. Logan, 1 Mo. R. 377, decided upon an indictment for “stealing a book of the value of three dollars,” that the allegation was sufficiently certain, and need not allege the title of the book. The indictment in this case certainly has more certainty than that in the case of Logan. It informs the defendant of what he has to answer and is therefore sufficient.

RYLAND, J.

At the September term, 1849, of the St. Louis Criminal Court, the appellant, George Wein, was indicted for grand larceny. The following is a copy of the indictment:

STATE OF MISSOURI,

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St. Louis Criminal Court, September term, 1849.

County of St. Louis,

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The grand jurors of the State of Missouri, within and for the body of the county of St. Louis, now, here in court, duly impaneled, sworn and charged, upon their oath present that George Wien, otherwise called George Wein, late of St. Louis in St. Louis county, on the first day of June, in the year of our Lord, one thousand eight hundred and forty-nine, at St. Louis...