State v. Irwin , 80 Mo. 249 ( 1883 )

Hough, C. J.

The defendant was convicted of stealing a mare alleged to be the property of one Mrs. S. A. Duncan. The only question presented in the brief of defendant’s counsel is, whether the evidence is sufficient to support a conviction. It is contended that the testimony shows that the taking of the mare in question was, at most, only a trespass. The defendant testified at the trial, and admitted the taking and trading of the mare. There was some testimony tending to show that the taking was larcenous, and there was testimony tending to show that the defendant took and traded the mare with the permission of Serena Duncan, the reputed owner of the mare, and a daughter of Mrs. S. A. Duncan. Each of the judges has attentively considered the testimony, and all are of opinion that it leaves the question of the defendant’s guilt so much in doubt, as to invito the closest scrutiny of the instructions, which were excepted to and brought to the attention of the court in the motion for a new trial. Record evidence of a former convietipn of a like offense, was adduced at the trial, for the purpose of increasing the punishment, under section 1664 of the Revised Statutes.

The following instructions, among others, were given on behalf of the State:

1. The jury are instructed that if the defendant took and stole the mare of S. A. Duncan, at this county, in September last, and that he is the same Lyman Irwin named in the transcript of the record of the circuit court of Gentry county, Missouri, which has been read in evidence, ikon he is guilty, and if the jury so find from the evidence beyond a reasonable doubt, they will find him guilty.

4. If the jury find the defendant guilty, they will assess his punishment in the penitentiary for a term of seven years.

"We regard the instructions as sufficiently misleading to justify a reversal of the judgment, in view of the evidence in the case. That clause of the first instruction which “refers to the record of former conviction, should have been embodied in the fourth instruction, and omitted from the first.

All are of opinion that the judgment should be reversed and the cause remanded.