State v. Bulla

89 Mo. 595

• Court: Supreme Court of Missouri
• Decided: October 15, 1886
• Status: Published

Opinion

Norton, J.

The defendant was tried in the criminal court of Buchanan county on an indictment containing two counts, in the first of which he is charged with grand larceny in stealing a horse belonging to one Sampson, and in the seconcl of which he is charged with receiving stolen property, knowing it to have been stolen. Defendant was acquitted on the first, and convicted on the second count, and from the judgment of conviction has appealed to this court.

I. It appears from the record that on the trial defendant offered himself as a witness, and was examined, and the state was then, over defendant’s objection, allowed to introduce and examine witnesses touching his-general moral character. There was no error in this. Where a defendant criminally charged is examined in his own behalf, he. may be impeached as any other Avitness, except that on his cross-examination, he can only be enquired of as to such matters as he has testified to in his examination in chief. State v. Palmer, 88 Mo. 568; State v. Grant, 79 Mo. 113; State v. Clinton, 67 . As the cause, for a reason yet to be given, must be remanded, in view of the latitude allowed in the cross-examination of defendant and the witnesses who testified as to his general moral character, it may be well to remark, that in the re-trial, the cross-examination of defendant, should he again become a witness, should be confined to such matters as he may testify to. in chief, and that the witnesses, as to character, should not be allowed to testify as to single acts of moral delinquency.

II. The material error committed by the court was in the refusal of the following instruction:

“4. Unless the jury believe, from all the evidence, beyond a reasonable doubt, that the defendant bought or received the horse, mentioned in- the indictment, from' some other person, knowing said horse to have been stolen, they will find him not guilty as charged in the second count of the indictment, and the mere naked fact of the possession of said horse by the defendant raises no presumption that the defendant knew that said horse had been stolen by another.”

In view of the fact which the record discloses, that, in the first count of the indictment, defendant was charged with grand larceny in stealing the property, and the further fact that the court, with reference to this count, had properly instructed the jury that possession of stolen property recently after the theft, raised the' presumption that the possessor was the thief, and in view of the further fact that defendant was charged in the second count, on which he was convicted, with receiving stolen property, knowing it to be stolen, we are of the opinion that the above instruction ought to have been given. While it is well settled in this state that the possession by a person of stolen property recently after the theft, raises a presumption that he stole it, we have never gone so far as to intimate that recent possession of stolen property, by a person who is charged with receiving stolen property, knowing it to be stolen, raises a presumption that he had knowledge that it was stolen, but on the contrary, we are of the opinion that in such case no such presumption is to be indulged in.

Under the circumstances of this case, the instruction asked for was not a mere abstraction, having no practical application, to the facts, and it was error to refuse it, and for this error the judgment will be reversed and cause remanded.

All concur.