State v. Owen

1. Autrefois acquit: larceny. A person tried upon an indictment drawn in two counts, the first charging larceny, the second embezzlement o'f the same property, was found guilty on the first count and not guilty as to the second, and judgment of discharge entered accordingly. For a fatal defect in the first count the judgment was arrested, and upon another indictment being found for larceny alone> the defendant interposed a plea of autrefois acquit. Held, not a good plea. 2. The Court declines to construe an obscure order of nolle prosequi found in the record as referring to the indictment on which the defendant was tried, it appearing that he had been before tried on an indictment which had, upon motion in arrest, been held bad. 3. Larceny. An indictment held sufficient. 4. Limitation to Criminal Prosecution. When an indictment is quashed the time during which it was pending, is not to be computed as a part of the time of the limitation prescribed for the offense. R. S. 1879, § 1707. 5. Instructions, in a larceny case, approved. 6. Practice, Criminal: defendant as a witness. A defendant voluntarily testifying in his own behalf, is amenable to the usual rules governing the cross-examination of witnesses. E. S. 1879, § 1918. See State v. Turner, 76 Mo. 350; State v. Porter, 75 Mo. 171. 7. -: harmless error in ruling on evidence. Where the defendant on the witness stand virtually admits his guilt, and besides it is clearly established by his confessions made out of court, and by other evidence, error in admitting further evidence will not warrant reversal of the judgment. Hough, C. J., and Henry, J., dissent. 8. --. Remarks of the prosecuting attorney in this case, if improper, do not require reversal of the judgment.

Appeal from Livingston Circuit Court. — Trial before Jonas-J. Clark, Esq., sitting as Special Judge. On the 4th day of February, 1880, the grand jury of Livingston county returned an indictment against defendant, Charging him with the larceny of a mare, th'e property of one Edward A. Evans, on the 20th day of April, 1879. On the 28th day of September, 1881, defendant was tried And found guilty on this indictment, but on the 8th of the following October he was awarded a new trial. In January, 1882, there was a mistrial. Afterward, on the 28th of the same month, the grand jury returned a new indictment in two counts, the first charging larceny of the mare, the second embezzlement of her. On the 23rd day of May, 1882,, defendant was tried and found guilty on the first count, and not guilty on the second count of this indictment. On the 25th of the same month a motion in arrest was sustained,, and on the 1st day of June a new indictment was found. On the 3rd day of June an order was entered as follows; “A new indictment having been filed herein at this term,. on verbal motion of the prosecuting attorney, it is ordered that a nolle prosequi be entered herein, and that defendant go hence discharged thereof and recover his costs in this behalf expended.” The new indictment is as follows: That on the 20th day of April, 1879, John E. Owen unlawfully and feloniously did then and there, one mare of the value of $50, then and there being the property of Edward A. Evans, did take and carry away, against the peace and dignity of the State; and the said John E. Owen has been a fugitive from justice from the 20th day of April, 1879, to the 20th day of January, 1881, and was not an inhabitant of or usually resident within this State from the, 20th day of April, 1879, to the 1st day of April, 1881,, against the peace and dignity of the State. On this indictment defendant was tried. Edward A. Evans, for the State, testified: Defendant-came to toy place about dark in April, 1879, looking for work. I was setting out trees; he helped me that evening. He remained at my house two days, then I hired him. I proposed to send him out to plow. He said he had clothes-in Chillicothe, and would go and get them before going to-work; said his reason for getting them was he wanted a-change of clothing. I said: How do you expect to get to Chillicothe. He said I don’t know; can’t you let me have a -horse. I said I don’t know; I don’t like to loan my horses. He said he would be hack by three o’clock p. m. Then I let him have the horse in controversy. I never saw her afterward. About three months afterward I heard he was in the Richmond jail. I-visited him there in his cell. Tears were running down his cheeks. He said he had taken my mare to Chariton, Io-wa, and there sold her for $25; took the money and got on a big spree; then went some miles further, stole a horse and took it to Nebraska, stayed there thirty days, stole another horse and brought it to Missouri and sold that one ; he said he was then in jail for stealing another horse here. To the introduction of all the evidence relating to the other alleged thefts defendant objected without avail. John T. Williams, for the State: Saw defendant at the jail in Livingston county; he told me he had got Evans’ horse and sold her to a man in Chariton, Iowa. J. D. Evans, for the State: Saw defendant in jail; asked him what defense he had; he said he had none; he hoped Evans would not be hard on him, and he would pay Evans when he got out. David Hughes, for the State : Defendant said to me that he told Evans the truth at Richmond; that he felt bad about it, had sold the horse in Chariton, Iowa. M. W. Butler : Evans came to me in 1879 looking for lost horse: we looked all over the city; could not hear anything of his animal, or of defendant being here at all. N. II. Taft was express agent at Chillicothe in 1879; have examined books of American Express Company and find no account of any package received at Chillicothe for J. E. Owen; none came to my office; was also agent for Union Express Company; have not examined those books, as they wore sent in; do not know what they contained and cannot tell whether defendant received package by that company or not. Isaac Deeper : Received defendant from the penitentiary and have had him in my charge as jailor ever since; received him January 15th, 1881; he had j ust served a term for horse stealing when I got him. Q-. W. Cranmer, for defendant : Heard E. A. Evans testify on the first trial of this case that defendant said he would walk to Chillicothe to get his clothes, and Evans said he told defendant to take the horse so as to get back sooner. Witness Evans contradicted this statement. Defendant Owen: I told Evans I wanted to go to Chillicothe for my clothes. He said, How ? I' said, on foot. He said to take the horse so as to get back sooner. I came here from Jefferson City; had been there eighteen months in prison; was in jail in Richmond May 28th or 29th, 1879 ; was arrested at Lawson, Missouri; have never "been out of confinement since. At the time I got Evans’ horse I rode her to Chillicothe; spent the money he had given me to got feed for mare and hooks for children for whisky; went to a saloon and got drunk. The cross-examination of defendant was as follows: What did you do with the mare after you came to Chillicothe ? Ans. I hitched her to the horse-rack on the south side of the square. What did you do with her after that ? Ans. I rode her off. Did you not tell Evans in Bichmond jail that you stayed north of Chillicothe with an old woman that night? Objected to; objection sustained. Did you not tell Evans that you would rather see any other man than him, when he came to see you? Objected to because defendant had made no statement in relation to conversation in Bichmond jail. Objection sustained. Lb this all you are willing to tell this jury about this case ? Objected to as improper and only asked to prejudice the jury. Objection overruled. The question being then repeated, defendant’s counsel again objected to the question and to its repetition. The count overruled the objection, but said that defendant had the right to refuse to answer. B. Phillips, in rebuttal: Was on the jury at the first trial. Evans did not state he had offered defendant a horse to ride to Chillicothe so as to get back sooner; he stated substantially the same in that trial as in this. David Hughes corroborated Phillips’ testimony. This was all the evidence. Whereupon the court, at the request of the State, gave the following instructions: 1. If the jury believe from the evidence, facts and circumstances proven in this case, beyond a reasonable doubt, that the defendant got the mare with intent to steal her and convert her to his own use, he is guilty of grand larceny, and in determining the question of intent the jury must look to all the evidence, facts and circumstances n the case. 2. If the jury believe from all the facts and circumstances in proof, beyond any reasonable doubt, that defendant, in the month of April, 1879, at Livingston county, State of Missouri, borrowed of E. A. Evans, the mare mentioned in the indictment, and that said mare was the property of said Evans ; that defendant never returned said mare, but converted her to his own use, and that at the time defendant so borrowed said mare he did so with the intent to steal her or permanently convert her to his own use, without the consent of her owner, they should find him guilty, and assess his punishment at not less than two nor more than seven years in the penitentiary. 3. The jury are the sole judges of the credibility of the witnesses and of the weight to be given to their evidence, and the jury are not bound to give to the testimony of any witness any other or greater weight than from all the circumstances in proof they may believe it entitled to. 4. Unless the jury believe from the evidence, beyond a reasonable doubt, that the defendant took, stole and carried away the mare mentioned in the indictment as charged therein, within three years next before the 28th day of January, 1882, they will find him not guilty, unless they further find that for some portion of that time he was absent from the State or was a fugitive from justice for the commission of the offense charged; in which case they will exclude the time defendant was so absent from the State or was a fugitive from justice for the said three years; but unless they be satisfied from the evidence that three full years have not elapsed between the commission of the offense and the 28th day of January, 1882, during which three years the defendant was in this State and not a fugitive from justice, they will find not guilty. 5. If the jury believe from all the facts and circumstances in proof, beyond a reasonable doubt, that the defendant got the mare described in the indictment with the intent to steal her, and did convert her to his own use, he is guilty of grand larceny, and in determining the question of intent the jury must look to all the facts and circumstances in proof. 6. E vidence consists as well of facts and circumstances as of direct proof, and proof may be as well made by facts and circumstances as by direct evidence. 7. Under the law drunkenness is no excuse or justification for crime. 8. A reasonable doubt to authorize an acquittal, should be a substantial doubt, and not a mere possibility of defendant’s innocence of the crime with which he is charged. 9. By the statute of this State the defendant is a competent witness in his own behalf, but the fact that he is a witness testifying in his own behalf may be considered by the jury in determining the credibility of his testimony. The court refused the following instructions prayed by the defendant: 5. The record of this cause shows that the defendant has been acquitted of the same acts and facts as charged in this indictment, and the jury must acquit the defendant. 6. The State has elected in this case to avoid the statute of limitations by declaring therein that the defendant was a fugitive from justice and a non-resident of this State, and are bound thereby, and unless the State has proven to the satisfaction of the jury, beyond a reasonable doubt, that defendant was a non-resident of this State or a fugitive from justice within three years before the 1st day of June, 1882, they will find defendant not guilty, and in making up their verdict they will count against the State all the time the defendant has been in custody. 7. The records read in evidence show that the defendant has been acquitted of embezzlement of the mare in controversy, and the jury must find the defendant not guilty if they believe from the evidence that the same acts and facts were introduced in evidence on said trial as ill this. 8. If the jury find from the evidence that the defendant was in the State, in charge of the officers of the State for three years next before the 1st day of J une, 1882, they will acquit him. 9. If the jury find from the evidence that the defendant was tried at the May term of the circuit court for the year 1882 on a charge of embezzlement of the mare in controversy in this case, and that the same facts were in issue ux>on the same evidence, they will acquit him. The court gave the following instructions at the instance of defendant: 1. The jury cannot find the defendant guilty of embezzlement in this case; he has been acquitted of the same; and if the jury believe from the facts and circumstances in evidence that the defendant conceived the intent of stealing. Evans’ mare after he got possession of her from Evans, they will find him not guilty. 2. If the jury have any reasonable doubt as to whether the defendant conceived the intent to take the mare before or at the time he got possession of it, they will find him not guilty. 3. If the jury entertain a reasonable doubt as to whether the defendant first conceived the intent to steal the mare in controversy, after he got possession of it, they will find him not guilty.