State v. Waters

Sherwood, J.

Larceny the crime, and a horse the subject of that crime, constitute the charge in the indictment against defendant. Conviction on this charge, and two years in the penitentiary were the results of a trial, and sentence being passed upon defendant and judgment entered on the verdict, he appeals to this court. Defendant is a cripple, goes upon crutches, and his account of the matter the following: “I was at Hams Prairie on the night of July 11, 1896; I had gone down to my uncle, who lives in that neighborhood on the evening of the day before. This was the first time I had been down there. My- home is in Audrain county, Missouri, where my father now lives and I am a bookkeeper and typesetter by trade. I took a horse from the rack at Hams Prairie and rode it away. I got the horse between nine and ten o’clock at night. I rode the horse to Audrain county that night, passing through Eulton at about twelve o’clock. I got to my uncle’s in Audrain county about sunup and that afternoon stopped at a school house where a Sunday school was being held. I hitched my horse to the fence with the other horses and made no attempt to conceal it. I went to Mr. Hardesty’s that night and to Mexico the next evening. 'While in Mexico the horse was hitched to the rack on the public square. I went from Mexico back to Hardesty’s and stayed all night there. While at Mr. Hardesty’s he and I had a talk about the horse. He asked me how much it would take to buy him and if it was my horse. I told him that I had gotten the horse from aman over west and I didn’t know whether he wanted to sell him or not. I went from Hardesty’s to a picnic at Young’s Creek. I tied the horse with other horses and where it could be seen by anybody. I made no effort whatever to conceal it. Mr. Johnson arrested me and took the horse. This was the horse I *543 took and rode away from Hams Prairie in Callaway county. I did not take the horse with the intention of stealing it, or permanently depriving the owner of it, nor to permanently appropriate it to my own use. I wanted to go to my father’s in Audrain county that night and thought I would ride the horse over and then turn it loose. After getting over in Audrain county I heard of the picnic at Young’s Creek, and then thought I would ride the horse over there. I intended to turn the horse loose and let him go back.”

On the .evening that the horse was taken, and just before that event, ¥m. Tucker Mosley, a brother of the owner of the horse was riding it to the Hams Prairie church to a festival there-, and going along he overtook defendant who was afoot. Entering into conversation with defendant, the latter asked him whose horse he was riding, how old he was and Avhatit was worth; said it was a good horse. Price Johnson, deputy sheriff of Audrain county, who arrested defendant at a picnic at Young’s Creek, some ten or twelve miles north of Mexico, testified that defendant on being asked if he had taken a horse in Callaway county admitted he had, and, asked where the horse was, pointed out the horse hitched to a rack along with others. Thereupon Johnson arrested defendant and took him to Mexico, and while on the way there .defendant admitted that he took the horse and said he knew a good horse when he saw it. This is the substance of the evidence.

Contention has been made as to the validity of instruction numbered 2 given at the instance of the State. But if there is error in this regard, we can not notice it because no exception was saved to its being given. Nor can the failure of the trial court to instruct upon all questions of law, etc., be noticed inasmuch as no exception was saved on this account when the *544 instructions on behalf of the State were given. And if such exception had been saved, it would have availed nothing, because not preserved in the motion for a new trial. We have ruled this point the same way very frequently heretofore. State v. Cantlin, 118 Mo. 100 , and other cases.

Besides the instructions given at the request of defendant, nine in number, seem to cover the entire ground and to leave nothing more to be desired.

But one more point remains to be noticed, and that is, whether the exclusion of Hardesty’s testimony was error. It was proposed to prove by him what defendant said to him as to who owned the horse, or about his selling it, or where he got it. Testimony in response to- questions of this sort was properly excluded for the reason that the theft, if one had occurred, had taken place long before the conversations in relation to the horse happened, and so could have no tendency whatever to characterize, illustrate or give color to the act of taking the horse. 1 Greenleaf, Evid. [14 Ed.], secs. 108, 110; Whart., Crim. Evid. [9 Ed.], sec. 690.

“But when the declarations are distinguishable in point of time, or are open to the suspicion of being part of the defendant’s plan of defense, they must be ruled out........So 'one indicted for murder can not give in'evidence his own conversations, had after going half a mile from the place of murder, when he has had time to collect himself to make out his case. And so where a defendant, indicted for murder, was met after the transaction at some distance from the scene with blood on his hands, it was held that his declaration at the time to account for the blood on his hands, and other suspicious circumstances, were not admissible; and this, though there was no person present when the homicide was committed.” Whart., Crim. Evid. [9 Ed.], sec. 691.

*545 If testimony of the sort contended for is admissible, then all a party would have to do in order to successfully steal a horse and ride him to California, would be to tell every night where he stopped that the horse belonged to another man and thus escape the pains and penalties of larceny.

Therefore judgment affirmed.

All concur.