State v. Homes

17 Mo. 379

• Court: Supreme Court of Missouri
• Decided: October 15, 1852
• Status: Published

Opinion

Rylaíto, Judge,

delivered the opinion of the court.

The attention of this court will be called to the instructions only, which the Criminal Court gave and refused to give on the trial in this' case.

The instructions refused appear in the above statement : those given are as follows : “ If the jury believe from the evidence, that the defendant, in St. Louis county, and within three years next preceding the finding of this indictment, did steal, take and carry away any of the bogs charged as the property of Frederick Price, of any value whatever, and that be did so steal for the purpose of converting the same to bis own use, they will find the defendant guilty of grand larceny.” The other instructions given have reference to the doctrine of possession of stolen property — of the punishment for grand larceny, and of doubt, &c.

1. From the facts preserved on the record of this case, it is the opinion of this court, that the Criminal Court should have given the first instruction prayed by defendant, as set forth in the statement above. The instructions given by the court do not put the doctrine contended for by the defendant in that instruction before the jury, and yet that is a well founded principle in criminal law. If the defendant takes the property in a fair color of claim or title, though he may be mistaken, yet there is wanting one essential ingredient to the felony, namely, the felonious intent with which the property was taken; without this intent it is no larceny.

2. The second instruction prayed for contains no law — it is merely asking the court to comment upon the facts in proof, or to direct the minds of the jurors to such facts. It is no error to fail to do this. In the instructions given to the jury, it would have been more in accordance with the law for the court to have defined the offence; to have told the jury what constituted larceny, instead of saying, if they believed that the defendant did steal, &c.

The court erred in not giving the first instruction prayed for by the defendant, and for this its judgment must be reversed. The other judges concurring, the judgment is reversed and cause remanded.