State v. Ravenscraft , 62 Mo. App. 109 ( 1895 )

Biggs, J.

The defendant was tried and convicted of petit larceny. The information charged that on the second day of July, 1894, he cut and severed from the land of George Domes a crop of grass, of the value of $20, and that he unlawfully converted it to his own use with the intention of stealing it. The information is drawn under section 3546 of the Revised Statutes of 1889. That portion of the section, which is pertinent,' reads: “Every person * * * who shall steal, take and carry away any roots, plants, melons, garden vegetables, grain corn, flax, hemp, or any cultivated grass or fruit, in which he has no right or interest; standing, lying, or being on the land of another, shall be deemed guilty of larceny in the same manner and in the same degree, according to the value of the property, article or thing so .taken, as if the same had been severed at some different and previous time.”

The defendant moved the court to quash the information for the reason, among others, that it failed to aver that the defendant had no right or interest in the grass. The circuit court overruled the motion, and the defendant excepted and still excepts.

We are of the opinion that the motion to quash ought to have been sustained. The exception stated in the statute is that the defendant must have “no right or interest” in the property alleged to have-been stolen. The exception is found in the enacting clause, and is descriptive of the offense. The rule is that “whenever an exception is contained in the section .defining an offense, and constitutes a part of the description of the offense sought to be charged, the indictment must negative the exception; otherwise no offense is charged.” State v. Crenshaw, 41 Mo. App. 24; State v. Meek, 70 Mo. 357; State v. Sutton, 24 Mo. 377.

We will not remand the case, for the reason that the evidence is not sufficient to warrant a conviction, should a new indictment or information be preferred. The facts are these: Domes, the prosecuting witness, owns a house ánd six acres of land in the village of West Ely. It is admitted that he rented to the defendant the house and one acre, and that the latter was in possession at the time of the commission of the alleged larceny. The acre upon which the house stands is separated from the other land by a fence. The other five acres were sown to timothy, and the defendant is charged with cutting and stealing the timothy. The evidence for the state tended to prove that Domes only rented the house and one acre. On the other hand, the defendant, his mother, daughter and two sons testified that the contract of renting, which was verbal, included all the land. It wa.s admitted that the defendant cut the grass openly, and under a claim of right asserted at the time. There is not the slightest evidence that the defendant acted wantonly, or otherwise than under a claim of right. He may have been guilty of an unlawful conversion of the property, but not of a theft. The difference between the two offenses is that in the commission of the latter the property must be taken with a felonious intent, — that is', without color of right or excuse. State v. Newkirk, 49 Mo. 84; State v. Moore, 101 Mo. 316.

With the concurrence of the other judges,

the judgment of the circuit court will be reversed and the defendant discharged. It is so ordered.