State v. Babb

I.

Sherwood, J.

As it does not appear from the record that any venue was proven, the judgment will not be allowed to stand. State v. McGinniss, 74 Mo. 245 ; State v. Burgess, 75 Mo. 541 .

II.

The first instruction given on behalf of the State is faulty in two particulars: in telling the jury that defendant could be found guilty of larceny if he “ feloniously took, etc., any of the goods, wares and merchandise then in said store.” The defendant was only punishable on that trial, on account of such goods, etc., as were charged in the indictment and proven to have been stolen. State v. McGraw, 74 Mo. 573 ; and in telling the jury that defendant was guilty of larceny, if he “ feloniously stole, took or carried away any of the goods,” etc. The jury might well have inferred that a felonious caption of the goods was unnecessary to constitute the offense of larceny. And the instruction should have defined the offense of burglary and also that of larceny.

III.

The instruction as to the recent possession of stolen property was properly given. State v. Kelly, 73 Mo. 608 ; State v. Williams, 54 Mo. 170. And the presumption which the law raises as to recent guilty possession is not confined to theft, nor to any class or species of felony, but is applied even in cases where the highest penalties are inflicted—as *504 in a ease of arson, where property which was in the house when the arson occurred was soon afterward found in the possession of the prisoner; Pickman’s case, 2 East P. C. 1035; 1 Greenleaf Ev., § 34; 3 Ib., § 57; and in cases of burglary and larceny. State v. Brewster, 7 Vt. 122 . And in this case we regard the possession of the property as sufficiently recent to amount to what is termed “guilty possession.” The breaking and larceny were proven to have occurred on the 30th day of October, and on the 2nd day of- December, 1879—and shortly after each of such breakings, articles such as the owner had in his store were found in defendant’s possession.

IY.

And we regard the identity of the goods as having been sufficiently established. The owner positively identified the key of his store found in defendant’s possession, along with other articles, resembling in every respect, those charged in the indictment and proven to have been stolen; and it was for the jury to say whether, considering all the circumstances of the case, they were satisfied beyond a reasonable doubt of the identity of the goods. The identity of a person or thing is an inference to be drawn from a series of facts. Wharton Crim. Ev., §§ 13, 27. To a certain extent it rests on the opinion or judgment of the witness. Eor instance, if prior to the trial in which he is summoned, he sees a person or thing and that person or thing bears a resemblance more or less striking to the person or thing with whom or with which he is familiar or acquainted, from that knowledge and that resemblance, he is enabled to say, with more or less positiveness, that the person or thing seen by him, is identical with the person or thing in question. “Ordinarily, mere belief or persuasion not resting on a sufficient or legal foundation, is inadmissible, but with respect to persuasion or belief based on facts within the witness’ own knowledge, the case is otherwise. On questions of identity of persons and handwrit *505 ing, it is every day’s practice for witnesses to swear they, believe the person to be the same, or the handwriting to be fchat of a particular individual, although they will not swear pointedly ; and the degree of credit to be attached to the evidence is a question for the jury.” Greenwell v. Crow, 73 Mo. 638 ; Stark. Ev., § 173 ; Greenleaf Ev., § 440.

In Massachusetts, it has been held that where the only question in the trial of a criminal case is the identity of the prisoner with the guilty party, the jury may be justified in returning a verdict of guilty although no witness will swear positively to the identity. Commonwealth v. Cunningham, 104 Mass. 545 . In that case, the witnesses would not swear that the prisoner was the same man they saw on the wagon, but that “ he resembled him.” And the court say : “ TJpon this question of identity the evidence offered was all of it competent and proper for the consideration of the jury. It is impossible to say that it had no tendency to convict the defendant. Its sufficiency was to be estimated and weighed exclusively by them.”

For these reasons it was competent for the prosecuting witness to swear that from his personal knowledge of the goods stolen, he believed those exhibited to him were his, notwithstanding they bore no private mark whereby they could be positively identified.

On the grounds heretofore pointed out, judgment reversed and cause remanded.

All concur.