State v. Owen , 78 Mo. 367 ( 1883 )

I.

Sherwood, J.

The defendant was indicted in the Livingston circuit court. The indictment contained two counts, the first for larceny, in stealing a mare; the second for feloniously embezzling the same. Upon trial had, the defendant 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 liis plea of autrefois acquit. The trial court very properly held that this plea could not prevail, the facts in the case, spread upon the record, not warranting or sustaining the plea in bar.

The statute provides that a person may be indicted for embezzlement and convicted of larceny, or vice versa; and in either case he is punished according to the fact as found by the verdict, whether the indictment charge embezzlement, or whether it charge larceny. E. S. 1879, § 1652. And the section cited further provides that “ no person so tried for embezzlement or larceny as aforesaid, shall be liable to be afterward prosecuted for larceny or embezzlement upon the same facts.” Had the indictment in this case contained but one count for either larceny or embezzlement, and had there been simply a verdict of acquittal, doubtless under the very terms of the statute no further prosecution could have been maintained for either of such offenses based “ upon the same facts.” But had the indictment contained but one count, and that for embezzlement, and had a trial been had on such count, and the defendant found guilty of larceny, and either expressly or else tacitly, not guilty of embezzlement; no one would question but that if the indictment were held bad on motion in arrest, the defendant could be indicted and tried on an indictment charging larceny alone. And the status of the case is not altered in this regard, because the pleader has seen fit to make his charge bifurcate, instead of making it in but one count, as allowed by the statute.

The verdict in this case on the former'indictment must be taken as a whole, and not in separate parts. It clearly convicts the defendant of larceny, and acquits him of embezzlement, and when a plea of autrefois acquit is pleaded, based on such a verdict, it requires but an inspection of it to see that defendant did not go acquit of the larceny. State v. Bowen, 16 Kas. 475; 1 Bishop Crim. Prac., § 1005 a.

ii.

Although the entry announcing the fact of the nolle prosequi as to a former indictment, is somewhat obscure, yet we think it sufficiently plain what indictment was intended to be quashed; and the subsequent action of the court upon the indictment last found, shows what construction that court put upon its own entry of record. We will not intend, except upon the very clearest and most satisfactory record evidence of the fact, that a court would commit or sanction such an egregious blunder as to put a defendant upon his trial with no living indictment whereon to try him.

III.

The last indictment found was a valid and sufficient indictment, and charged that the larcenous act was feloniously done. There is no substantial objection to it.

IV.

No discussion is needed respecting the causes alleged in the last indictment, as to the absence of the defendant from the State, and as to his being a fugitive from justice, because the statute of limitations does not run where, as here, there were successive indictments pending against the defendant for the offense for which he was tried, and here the first indictment was found at the January term, 1880. R. S. 1879, § 1707; State v. Duclos, 35 Mo. 237; State ex rel. v. Primm, 61 Mo. 166; Bishop Stat. Crim., § 262.

V.

The instructions on both sides, taken as a whole, correctly declare the law on the subject of larceny, as applicable to the facts in evidence, and no valid objection can be urged against them. It may not be amiss, however, to say that nine instructions were given on behalf of the State, and three on the part of the defendant, making twelve in all, when the whole law of the case could have been coyered by one or at most by two well drawn and concise instructions.

YI.

We have no fault to find with the lower court in permitting the proscuting attorney, after the defendant had testified in chief, to ask him, after cross-examining him to some extent: Is this all you are willing to tell the jury' about this case?” Such words were only equivalent to asking him: “ Have you anything more to tell the jury ?” The defendant volunteered to testify in his own behalf, and had thus testified, and was, therefore, amenable to the usual rules respecting other witnesses, and it was the privilege of the prosecuting attorney by all proper questions and methods to endeavor to elicit the truth.

YII.

Granting that there was error in permitting Evans, the owner of the mare, to relate to the jury the confessions of the defendant as to other similar crimes besides the one for which he was on trial, it is impossible to see how the defendant was in the slightest degree prejudiced thereby; because when on the witness stand he virtually admitted his guilt, admitted that he rode the mare off from Chillicothe where he had boon permitted to go out of the kindness of Evans; and he did not pretend that he ever returned the mare, and there was abundant evidence that he had not, and besides, his own confessions to several other persons than Evans, show his guilt in the clearest possible light. In such circumstances it would be out of the question to reverse the judgment. State v. Patterson, 73 Mo. 695; Rex v. Ball, Russ. & Ry. 132: State v. Emery, 76 Mo. 348; State v. Jennings, 18 Mo. 435.

YHI.

The remarks of the circuit attorney, if improper, are disposed of by the observations made in the case of the State v. Zumbunson, decided at the last term, and by the case of the State v. Jones, ante, p. 278, and the State v. Dickson, decided at the present term. Therefore judgment affirmed.

Norton and Rat, JJ., concur; Hough, C. J., and Henry, J., dissent.