source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    THE STATE v. JOHN G. A. H. ZEHNDER, Appellant.
    Division Two,
    May 26, 1910.
    1. FALSE MARKING OF HOGS: Grand Larceny: Value. .The statute (Sec. 1903, R. S. 1899) which declares that “if any person mark or brand or alter the mark or brand of any animal, the subject- of larceny, being the property of another, with the intent to, steal or convert the same to his own use ... he shall be adjudged guilty of larceny, and punished in the same manner as if he had feloniously stolen such animal,” is not directed solely against the marking of such hogs as are per se the subject of grand larceny. 'The statute no longer makes it grand larceny to steal or carry away hogs, in total disregard of their value, but the amendment of 1879 did not make the statute apply only to wrongful marking of hogs the stealing of which is grand larceny per se. Said section 1903 denounces the wrongful marking of any and all hogs, the property of another, with intent, etc., whatever may be their value.
    2. -: Grand Larceny: Defined1 by Word “Feloniously.” Whatever may be the value of the hogs, the property of another, the false marking of them with intent to convert them to the marker’s use, is grand larceny. That is tile meaning of the words of the statute which says that the offender shall be “punished in the same manner as if he had feloniously stolen such animal.” To be a felony the larceny must be grand larceny.
    3. -: Instruction: No Felonious Intent. An instruction which does not require the jury to find that the defendant placed his own mark upon the hogs of another, with the felonious intent to convert them to his own use, is error. So that an instruction telling the jury that “if you believe and find from the evidence that the defendant . . . did unlawfully place and affix his own marks ... in and upon the ears of two hogs, the personal property of Andrew J. Hopkins and of some value, no matter how small, with intent on the part of him, the said John G. A. H. Zehnder, to unlawfully steal and convert the hogs to his own use, then you will find the defendant guilty ' of grand larceny . . . and assess his punishment at imprisonment in the penitentiary,” is erroneous. The instruction should have required the jury to find that defendant feloniously placed his mark on the hogs, or that he placed his mark upon them with the felonious intent on his part to steal and convert them to his own use. And such omission, in a case where the evidence to establish defendant’s guilt is far from satisfactory, is reversible error.
    4. -: Incompetent Evidence: Possession of Other Property. In a prosecution of defendant for placing his mark upon the hogs of another, with the felonious intent to convert them to his' own use, testimony as ,to the possession by the defendant ‘ of the hogs of any person other than the prosecuting witness should be excluded, where defendant took up other persons’ stock to prevent them from trespassing upon his fields.
    Appeal from Butler Circuit Court. — Row. J. G. Sheppard, Judge.
    Reversed and remanded.

      E. R. Lents for appellant.
    (1) The indictment in this case is fatally defective, in that it fails to allege that the alleged marking of the hogs was done without the owner’s consent. The statute makes the marking, or branding of animals with intent, etc., a species of larceny. In every case of larceny the want of consent of the owner of property alleged to have been stolen is an essential element of the offense. It is a fact which is an essential element in a prima-facie case of guilt and must be stated; nothing is to be left to intendment. All that is necessary to be proved must be alleged. Bishop on Crim. Prac. (3 Ed.), sec. 519; State v. Terry, 109 Mo. 619; State v. Benson, 110 Mo. 30; State v. Kirby, 115 Mo. 447; State v. Stowe, 132 Mo. 206; State v. Krueger, 134 Mo. 273; State v. Woodward, 156 Mo. 147. (2) In this case the defendant was indicted for one offense, i. e., that of marking two hogs with intent to convert to his own use, etc., and the instructions of the court directed the jury to find him guilty of another and different offense, to-wit, grand larceny. A man cannot be indicted for one offense and convicted of another, if the provisions of section 22 of our Bill of Rights are to be obeyed respecting the nature and cause of the accusation. Sherwood’s Com. Crim. Law, p. 228; State v. Arter, 65 Mo. 654; State v. Stone, 68 Mo. 104; State v. G-abriel, 88 Mo. 642; State v. Harmon, 106 Mo. 650. (3) Where the defendant claims to own the property alleged to have been stolen, and there is no substantial evidence of any criminal intent, the court should not send the case to the jury. In this case the defendant claimed his wife owned the hogs; there was no evidence, either substantial or otherwise, of any criminal intent, hence the court erred in overruling the demurrer to the testimony requested at the close of all the evidence. State v. Cloybaugh, 122 S. W. (Mo. App.) 319; State v. Mathews, 20 Mo. 57. (a) The question in such cases is not as to the effect of the act done, but as to the animus which prompted its commission. State v. Pitt, 58 Mo. 558; State v. Johns, 124 Mo. 385; State v. Riley, 4 Mo. App. 397; State v. Cunningham, 154 Mo. 179. (b) The taking of property of another under fair color of right or title is not larceny. Witt v. State, 9 Mo. 671; State v. Homes, 17 Mo. 379; State v. Shermer, 55 Mo. 83; State v. Weatherman, 202 Mo. 16; State v. Walker, 174 Mo. 523. (4) Section 1903, R. S. 1899', evidently refers to eases where the animal is killed, or as here, marked, before there is any taking or asportation, and not to cases where, as here, the taking or asportation was complete before the killing or marking takes place. Here the evidence shows that the hogs were first taken and confined at least two weeks before they were marked. Hence defendant could not have been convicted under this section, and the court should have so instructed the jury and directed a verdict for the defendant. State v. Crow, 17 S. W. 748. (a) The testimony in this case shows that if the defendant was guilty of any offense, he was guilty of petit larceny and could not be convicted under the indictment in this case, (b) The animus quo and all actions and words by which that is demonstrated form a part of the res gestae. Garber v. State, 4 Coldw. 161. (c) In this case the statement of the defendant at the time of taking up and marking the hogs, “that he thought they were his wife’s hogs,” is explanatory of, and gives color to, his acts in taking up and marking the hogs, and shows that he had no criminal intent at the time of the commission of these acts. State v. Gabriel, 88 Mo. 639. (5) From the revision of the statute in 1879, until the passage and taking effect of the Act of 1909, stealing a hog was not grand larceny unless it was of the value of thirty dollars or more. Respondent’s instruction asked the court so to declare the law. All the evidence shows the value to be less than thirty dollars. Hence the refusal to give this instruction was error, as was, also, giving the first instruction for the State. R. S. 18991, sec. 1898. (6) The first instruction given on behalf of the State is erroneous in many respects. First. It omits the essential element of felonious intent by the defendant to feloniously convert the property to his own use. This court has always held that an instruction in a larceny case, which omits this
      element, is erroneous. State v. Weatherman, 202 Mo. 10; State v. Speritus, 191 Mo. 24; State v. Littrell, 170 Mo. 15; State v. Rutherford, 152 Mo. 124; State v. Lackland, 136 Mo. 30; State v. Moore, 101 Mo. 516; State v. Ware, 62 Mo. 602; State v. Shermer, 55 Mo. 83; State v. Gray, 37 Mo. 463; Witt v. State, 91 Mo. 671. Second. This instruction also fails to tell the jury that the taking from the owner must be without consent. This was absolutely necessary to complete the offense. Unless it was taken without the consent of the owner, it is not larceny. State v. Weatherman, 202 Mo. 10; State v. Speritus, 191 Mo. 36; State v. Waller, 174 Mo. 522. Third. By this instruction the court tells the jury that the stealing or marking of a hog of any value whatever, no matter how small, is grand larceny. This is not the law, or at least was not when this offense was alleged to have been committed. R. S. 1S99, sec. 1898. (7) Criminal statutes should not be extended or enlarged by judicial construction so as to embrace offenses or persons not plainly within their term. To make the defendant guilty of grand larceny in this case requires a most violent enlargement, by judicial construction, of section 1903, upon which this prosecution is based. State v. Howard, 137 Mo. 297; State v. Gretzner, 134 Mo. 527; State v. Schuchmann, 133 Mo. 123; State v. Reid, 125 Mo. 48; State v. Bryant, 90 Mo. 537; Bishop on Stat. Crimes (2 Ed.), 196-227; Sedgwick, Constr. of Stat. and Const. Law, sec. 280. (a) . A penal statute is not to be regarded as including anything which is not clearly and intelligently described in.its very words, as well as manifestly intended by the Legislature. Dudley v. Tel. Co., 54 Mo. App. 391; Guaranty Co. v. Kansas City, 200 Mo'. 168. (b) . Criminal statutes should be strictly construed against the State, and liberally construed in favor of innocence and liberty. State v. Rutherford, 152 Mo. 131; State v. McCance, 110 M.o. 398; State v. Gray, 37 Mo. 463.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) The offense of marking another’s hogs with intent to steal or convert the same to such person’s own use is purely a statutory crime, and when the statute individuates such crime the offender has proper notice of the nature of the charge against him, and it is sufficient to charge the offense in the language of the statute or in terms substantially equivalent. The indictment here follows the language of the statute and individuates the crime charged and fully informs appellant of the same. The indictment follows the approved forms as given by Kelley and Sherwood and is sufficient in every particular. Kelley’s Crim. Law (2 Ed.), sec. 671;-Sherwood’s Latw, p.'229; Joyce on Indictments, secs. 371 et seq.; State v. Edgen, 181 Mo. 589; State v. Miller, 190 Mo. 449; State v. Wilkerson, 170 Mo. 184; State v. Krueger, 134 Mo. 274; State v. Davis, 70 Mo. 467; State v. Kesslering, 12 Mo. 565; Parks v. State, 159 Ind. 211; State v. Eunzi, 105 Mo. App. 319; Commonwealth v. Campbell, 22 Pa. Sup. Ct. 98; Whitlock v. Commonwealth, 89 Ya. 337; Antle v. State, 6 Tex. App. 202;. State v. Edmunds, 127 la. 333, 30 Cyc. 365; Bishop’s Forms (2 Ed.), sec. 999. (2) Section 1903 makes it a felony for any person to mark an animal belonging to another, which animal is the subject of larceny, with the intent to steal or convert the same to his own use. The statute further provides that such person for such offense “shall be adjudged guilty of larceny and punished in the same manner as if he had feloniously stolen said animal.” To adjudge a person guilty of larceny means the same as that the offense is the offense of larceny, and to say that he shall be punished in the same manner as if he had feloniously stolen said animal, means that he shall be punished as for grand larceny. The word “feloniously” as used in the criminal code means that the offense is a felony. E. S. 1899, sec. 2393; Bishop on Stat. Crimes (2 Ed.), sec. 454. The very acts charged in. the indictment are made actual larceny by the statute. (3) The correctness of the abstract proposition of law as stated by appellant in his third assignment of error, no one disputes. But learned counsel for appellant overlooks the strong evidence and facts in proof in this cause showing that appellant marked the hogs with the intent to steal and convert them to his own use. The fact that appellant told the prosecuting witness when he came for the hogs: “He said he had some there, and if they were mine, I could have them, they were not his,” clearly shows that appellant did not believe the hogs belonged to his wife as he testified in the trial of this cause. The further fact that appellant hid the hogs away in the small pen after he had marked them, shows beyond doubt that he was trying to hide his crime of theft. While the hogs were in this small enclosed pen, and hid away from the view of those passing, the prosecuting witness made inquiry of appellant if he had seen the hogs, to which appellant replied that he had not, although he had informed the prosecuting witness that he knew his hogs. The proof in this case bristles with “ear-marks” of appellant’s guilt. By instructions 2 and 3, given on behalf of the State, the court submitted the question of intent and ownership by the wife to the jury and told them they should acquit appellant if he marked the hogs believing them to be the property of his wife. There was much substantial evidence showing criminal intent on the part of appellant in marking the hogs. The court very properly submitted the question of intent to the jury and they found against appellant’s contention. (4) Appellant further contends that section 1903, R. S. 1899, under which he was prosecuted and convicted, applies to eases where the animal is marked before there is any asportation. No one disputes the same to be the law, but appellant again loses sight of the facts and circumstances in proof in this case. It was a question of fact for the jury to determine just when appellant formed the intent and took possession of the hogs with the intent to steal and convert them to his own use. The proof shows that the hogs came up two or three times before they were finally put in the field with other hogs. At the time appellant marked the hogs, he separated them from the other hogs in the field, and concealed them away in a small closed pen. This is when he evidently formed the intent to steal and convert them to his own use. (5) The first instruction given on the part of the State is correct. It follows the language of the indictment and statute under which it is drawn and includes all of the elements of the crime charged, (a) The words “with the intent to unlawfully steal and convert said hogs to his own use” sufficiently charge the felonious intent. This is not a common law larceny case as is argued by appellant’s counsel, but is a case founded purely on the statute. The elements of larceny are made up by the common law. The elements of this offense for which appellant was prosecuted are made up by the statute. The felonious intent was sufficiently charged in the language of the statute, (b) The words “to unlawfully steal and convert to his own use” sufficiently charge that the taking was without the consent of the owner. Nothing could be stolen by consent of the owner, for if the owner gave his consent, it could not be larceny, (c) The marking of a hog of any value Whatever, with the intent to steal or convert the same, or any part thereof, is grand larceny, irrespective of the value.
   GANTT, P. J.

On January 26, 1909', the grand jury of Butler county returned an indictment against the defendant, in two counts. The first count charged that the defendant did, on or about the first day of October, 1908, at the county of Butler, State of Missouri, in and upon the ears of two hogs, all of the value of thirty-five dollars, the personal property of one Andrew J. Hopkins, then and there being, feloniously place and affix his own marks, to-wit, a crop-off of each ear and a split in the right ear, with intent on the part of him, the said John Gr. A. H. Zehnder, then and there feloniously to steal and convert the said two hogs aforesaid to his own use. The second count charged the defendant with grand larceny of the said hogs on the said day. At the close of the testimony the State entered a nolle as to the second count of said indictment. The defendant was tried by a jury and found guilty on the first count and his punishment assessed at two years in the penitentiary. After an unsuccessful motion for a new trial and in arrest of judgment the defendant was sentenced and from that sentence has appealed to this court.

On the part of the State the evidence tended to show that the prosecuting witness, Hopkins, and the defendant lived within a quarter of a mile of each other and near to the city of Poplar Bluff in Butler county át the date of the alleged marking of the two hogs described in the indictment. Hopkins testified that he bought the two hogs from a man by the name of Rogers. He agreed to pay him five dollars for the two. When he got possession of the hogs they were on Coffman’s place, and Rogers helped him get them up. The proof was very indefinite as to when Hopkins bought the hogs from Rogers, but it was a short time before Gr. D. Coffman claimed them, which was in the fall of 1907. It appears from the evidence that as a matter of fact Hopkins never paid Frank Rogers anything for the hogs, and Rogers testified that he never claimed the hogs and never sold them to Hopkins; that the hogs were running around on Coffman’s place and Hopkins requested him to help him get them up and he did so. There was evidence that Hopkins had said the hogs were strays.

After the prosecuting witness Hopkins had taken the hogs to his home G-. D. Coffman claimed them. The prosecuting witness refused to give them up to Coffman when the latter laid claim to them, and thereupon Coffman brought a replevin suit before the justice, and after the writ was served the prosecuting witness agreed to and did pay all the costs of the replevin suit and bought the hogs from Coffman. There was much testimony on both sides indicating that these hogs had run at large in the woods in the neighborhood in which the prosecuting witness Hopkins, Coffman and the defendant lived. The prosecuting witness claimed that the hogs strayed away from his home on the 9th of June, 1908, and he made search for them in vain. He testified that along in the fall of that year he was traveling along the road adjoining the defendant’s premises, and saw these .two hogs lying in the defendant’s hog lot; he called them and they came to him and he knew they were his hogs. He discovered, however, that more of their tails had been cut off, but he saw that they were his hogs.

He then gave the following description of the identification of his hogs by others and what occurred át the defendant’s home: “I got Gr. D. Coffman to come and identify them. I got Mr. Otto Witte also to come. They both said they would jswear they were my hogs. That was Saturday evening, and Monday morning I went up to get my hogs and see if Zehnder would give up my hogs. In the meantime I heard Mr. Wical had one gone, so Mr. Wical came over Monday morning to go up there and see if that was his hog, I and Mr. Wical and Mr. T. B. Hilton and Otto Witte went up there, and when I got there Mr Zehnder had just fed the hogs and had started out with two buckets of water. I made inquiry of the hogs, described them. He said he had some there and if they were mine I could have them, they were not his. He took us through the gate to where the hogs were and Wical said, ‘That’s mine, ’ and I said, ‘ These two over there are mine. ’ I made inquiry of Zehnder how he came to get them, and he said they got into his field and he put them up, and I asked him if he did not know my hogs. He said no, that he.was mistaken that time (referring to a previous conversation in which the defendant had told him that he had seen his hogs and knew them and if he saw them again would let him know) he described those hogs to me, that he did not know them. He said he had made inquiry of nearly everybody to find out about those hogs; but he did) not make inquiry of me. I told him they were mine. He said if they were mine I could have them, they were not his.”

With the assistance of the men who went with him the prosecuting witness took the hogs out of the enclosure of the defendant and turned them out again. These hogs were of the black Poland-China stock, with a few white marks over them, a very few. One was more white than the other. There was practically no dispute as to the defendant marking the hogs with his mark.

The defendant testified in his own behalf that he marked the hogs, but at the time he did so he believed that they belonged to his wife and he was still of that opinion. His wife also testified that she thought the hogs in dispute belonged to her at the time they were marked. She stated that some two or more years prior thereto she had some small pigs that strayed away, and afterwards these two hogs came up with her husband’s hogs, and came into Ms enclosure, and that she called them and- they came to her, and that after they had come back several times with her husband’s hogs they put them in the hog pasture, and later on her husband marked them with his mark. The defendant also offered evidence tending to prove his reputation as a law-abiding citizen in the community was good. Several of the witnesses on behalf of the State also testified that his reputation as a law-abiding man was good.

On the part of the State there was some evidence tending to show that after this dispute came up the defendant’s reputation as a law-abiding man was not good. Coffman testified that prior to the time he sold these hogs to the prosecuting witness, Hopkins, they had been running in the woods south of the Nickey farm and between that and Poplar Bluff.

George Purdam and Ed P’urdam testified that they knew Coffman and knew the hogs in controversy, that they had seen them in defendant’s field, and that at a time sometime before Coffman sold them to Hopkins these witnesses were cutting wood down in the Nickey field, and Coffman rode up to the outside of the fence and the hogs were there on the outside of the fence, and they asked Coffman whose hogs they were, and he looked at them and said: “They are my stock of hogs, but they are not mine, I do not know whose they are.”

There was a direct contradiction between the prosecuting witness Hopkins and the defendant as to the alleged statement by the defendant that the hogs were not his, that if they were Hopkins’ he could have them. Wical who was present at the time of the alleged statement put it in this way, that defendant said: “If we thought that they were our hogs to take them along, he did not want anybody’s hogs, only his own. I understood that he had marked them through mistake. ’ ’ In regard to Wical’s hog, there was no controversy, as the defendant said he had simply put it up to keep it out of his field. Witte did not testify to the statement attributed to the defendant by Hopkins, neither did Mr. Hilton.

Other witnesses testified to the fact that the defendant had hogs running outside, some marked and some unmarked, and that these two hogs in controversy came up with the defendant’s hogs and would come in and go out of his hog pasture, and that defendant said the hogs were his and marked in his mark. These ■witnesses also testified that the hogs in controversy were just like the stock of hogs that the defendant had on his premises. There was testimony that the prosecuting witness stated that when he bought these hogs from Prank Rogers he knew at the time they were strays, but that he had paid Coffman for them and had possession now and knew whom they belonged to.

As to the value of the hogs the prosecuting witness testified that for stock hogs the two were reasonably worth thirty-five dollars. He did not know what the market value was. They were worth twenty dollars to take them up and sell them. ' Coffman testified that the two were worth fifteen or twenty dollars, that was about what they were worth on the market. The defendant testified that he was in the butcher business and knew the value of the hogs and the two together would weigh about three hundred pounds and the hogs were worth four cents per pound on foot, that the two were worth about twelve dollars.

At the close of all the testimony the defendant requested the court to instruct the jury that under the pleadings and the testimony in the case defendant could not be convicted of the offense charged, and their verdict must be for the defendant. The defendant also requested the court to instruct the jury that, before they could find the defendant guilty of grand larceny they must believe from the testimony and beyond a reasonable doubt, the hogs alleged to have been appropriated to his own use by the defendant were of the value of thirty dollars or more. The court refused these two instructions and the defendant duly excepted!. The court then, on the part of the State, gave the following instruction:

“The court instructs the jury that if. you believe and find from the evidence' in this case that the defendant at the county of Butler, State of Missouri, at any time within three years prior to the 26th day of January, 1909, did unlawfully place and affix his own marks, to-wit, a crop-off of each ear and a split in the right ear, in and upon the ears of two hogs, the personal property of Andrew J. Hopkins and of some value, no matter how small, with intent on the part of him, the said John Gr. A. II. Zehnder, to unlawfully steal and convert the said hogs to his own use, then you will find the defendant guilty of grand larceny as charged in the first count of the indictment and assess his punishment at imprisonment in the penitentiary for a term of not less than two nor more than five years.”

To the giving of this instruction the defendant duly excepted at the time.

I. The prosecution in this case is bottomed upon section 1903, Revised Statutes 1899, which provides: “If any person mark or brand or alter the mark or brand of any animal, the subject of larceny, being the property of another, with intent to steal or convert the same to his own use, or shall willfully kill such animal, with intent to steal or convert to his own use the carcass or skin or any part of the animal so killed, he shall be adjudged guilty of larceny, and punished in the same manner as if he had feloniously stolen such animal.” This section has been a part of the statute law of this State since 1835. [R. S. 1835, art. 3, sec. 35, p. 178; R. S. 1845, ch. 47, sec. 38, p. 360; R. S. 1855, ch. 50, sec. 34, p. 577; R. S. 1865, ch. 201, sec. 30, p. 785.]

Prior to the revision of 1879 grand larceny was the felonious stealing, taking and carrying away money, goods, rights in action, or other personal property or valuable thing of the value of ten dollars, or more, or any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep or hog, belonging to another; but by that revision, the act was amended by striking out the words “sheep and hog,” and by increasing the value of the stolen property to thirty dollars. [R. S. 1879, sec. 1307, p. 229.] Since that revision it has remained as it appears in section 1903 np to tire time of the finding of the indictment in this case.

It is earnestly insisted by the learned counsel for defendant that section 1903 was directed against the marking and branding or altering the brand or mark of such animals and such only as were per se the subject of grand larceny, andi as hogs, since the amendment of 1879 and np to 1899, were not such animals, unless they are of the value of thirty dollars or more, this section could not and does not apply to the branding or marking of hogs under the value of thirty dollars. The argument is more plausible than sound. Section 1903, from its original enactment in 1835, has at all times made it a felony for “any person to mark or brand or alter the mark or brand of any animal, the subject of larceny, the property of another, with intent to steal or convert the same to his own use,” etc. It will be observed the statute does not limit the offense to the felonious marking or branding of any animal, the subject of grand larceny, but merely, the subject of larceny, and by its terms is comprehensive enoug’h to include petit larceny, which is only another degree of larceny. The accidental fact that for years larceny of a hog, of whatever value, was grand larceny, and the felonious marking or altering of the mark of a hog with intent to steal was punishable as grand larce ny, without reference to its value, does not justify us in holding that the amendment of the statute by excluding “hog or sheep” from the list of animals, the stealing of which constitutes grand larceny, per se, necessarily or by implication, amended section 1903 so as to make it apply only to animals the stealing of which is grand larceny per se. It applied when enacted to any animal which was the subject of larceny, and it still applied to such an animal when this offense was committed, if at all, and a hog was the subject of petit larceny at the time, and by so construing the section we are not extending it beyond its language or the intention of the law-making power. The Legislature has throughout the history^ of the State regarded it of importance to protect the rights of owners of live stock against the offense of false branding or marking and changing their marks or brands. The act had its origin doubtless in the conditions which obtained at that date, when the owners of stock turned them upon the rich and succulent prairies in the spring, and only salted them occasionally and gathered them in the fall. The natural and rapid change in the size and appearance ofi the animal often rendered it difficult, in the absence' of a brand or mark, to identify one’s cattle or hogs, and the ease with which a brand. or mark could be' changed and thus destroy the evidence of ownership in many cases, doubtless caused the enactment of this act against the changing marks or brands, and it has never been restricted at any period of our history to animals the stealing of which has been grand larceny per se, without regard to value.

II. The defendant earnestly challenges the instruction given at the instance of the State on two grounds. First, that it directs the jury to find the defendant guilty of grand larceny, and second because it does not require the jury to find that the defendant marked the hogs with a felonious intent to convert them to his own use.

As to the first proposition Mr. Bishop in his work on Statutory Crimes (.3 Ed.), section 454, says: “If a man effaces from another’s cattle the mark, or alters it, or puts on them his own mark,- intending by the help of these devices to convert them to his own use, evidently, as a question of just legal principle, though the author does not call to mind any case directly to the point, he commits either actual or attempted larceny at the common law;” and it was competent for the Legislature, we think, to define such conduct as larceny and to require it to be punished as grand larceny, as it has done, by requiring it to be “punished in the same manner as if he had feloniously stolen said animal, ” as petit larceny would be only a misdemeanor, and grand larceny a felony.

As to the second contention that this instruction eliminates the elements of felonious intent, there is much force in the point. The intent with which any person marks or brands an animal, the property of another, is of the very essence of the offense. The offense is a felony under the statute, and as was said in State v. Gabriel, 88 Mo. 642, “Where the indictment is based upon a statute creating the offense, an offense unknown to the common law, the indictment must set forth all the constituent facts and circumstances necessary to bring the accused perfectly within the statutory provision.” The court in instructing the jury under this section should be careful to require them to find that the marking of the animal was with a felonious intent to steal the same, or should define those elements of larceny which are equivalent to a felonious intent. In this instruction the court did not require the jury to find that the defendant feloniously placed and affixed his own mark on the hogs of the prosecuting witness, nor that he had placed and affixed his marks to the hogs with the felonious intent on his part to steal and convert the same to his own use.

In State v. Matthews, 20 Mo. l. c. 57, it is said by this court: “It is the intention with which the act is done that gives to it its criminality.” In that case, the defendant requested the court to charge that the jury could not convict the defendant unless they believe that he willfully altered the mark of the hog with intent to steal or convert the same to his own use, but the court refused said instruction and this court held that it committed error in refusing so to do.

In State v. Weatherman, 202 Mo. l. c. 9, the court Instructed that grand larceny is a wrongful and! fraudulent taking the property of another and converting the same to Ms own nse, and tMs court said: “That instruction two is erroneous is quite clear, as it omits the chief ingredient, that is, the felonious intent to convert the property to defendant’s own use without the consent of the owner.”

In State v. Gray, 37 Mo. 463, larceny is defined as “the wrongful or fraudulent taking and carrying away of the personal property of another from any place, with a felonious Mtent to convert the same to the taker’s use and make it his own, without the consent of the owner.” This definition has never been challenged but has been many times approved. [State v. Rutherford, 152 Mo. 124; State v. Littrell, 170 Mo. 13.]

Reasoning by analogy, it seems to us that the felonious intent is as much an essential element of tliis crime as it possibly could be m the definition of larceny ; and as the learned circuit court neither required in words or any terms that the jury should find that the defendant marked the hog’s with a felonious intent to steal the same, nor used other words tantamount to felonious intent, words which would have explained to the jury the felonious intent with which the act must have been done to constitute it a crime, we think the instruction is subject to the criticism made upon it. in view of the nature of the evidence in the case, we are of the opinion that the defendant was entitled to a clear and explicit declaration of the law in his behalf. The evidence is far from satisfactory to our minds to establish the guilt of the defendant. The sharp conflict as to ownership of the hogs on the part of the prosecuting witness himself, and the means by which he acquired Ms claim to the hogs, and the fact that the hogs had voluntarily come Mto the enclosure of the defendant, and the testimony on the part of the defendant’s wife and of others as to the ownersMp by the defendant and his wife of hogs of a similar breed, has produced in our minds a grave doubt as to the correctness of the verdict in this case, and has constrained us in view of the unsatisfactory instruction in the case to reverse the cause that a new trial may he had.

Inasmuch as the judgment must he reversed and the cause remanded, we may remark that all evidence as to the possession hy the defendant of the property of any other person than the prosecuting witness in this ease, should he excluded from the jury, and evidence as to the defendant taking up other people’s stock should not he permitted, as this character of evidence evidently tended to prejudice the defendant’s case in the eyes of the jury.

For the reasons given the judgment must he and is reversed and the' cause remanded for new trial. All concur.


author: FOX, J.

text:
    THE STATE v. JAMES R. WILLARD, Appellant.
    Division Two,
    May 26, 1910.
    1. FORGERY: Venue: Place of Alteration: Presumption. If soon after the check was altered, defendant had it in his possession and presented it at a bank in the county in which the information was filed, then it will be presumed, unless the contrary appears from the evidence, that such alteration was made in said county.
    2. INSTRUCTIONS: General Challenge: Sufficiency. An assignment in the motion for a new - trial in a criminal case that “the court improperly instructed the jury in each of the instructions on the part of the State as to the law of the case, and did not instruct as to the whole law of the case,” sufficiently challenges the correctness of all the instructions in the case.
    3. CONVICTION: Not Authorized! by Information: Preserved in Record Proper. If defendant was convicted of an offense which was not embraced in the information, then the point is saved by a motion in arrest charging as one of its grounds that “upon the record the judgment is erroneous,” since the information, as well as the verdict and judgment, constitute a part of the record proper.

      4. FORGERY: Different Degrees: Charged with Second: Convicted of Third. Under an information charging, and evidence showing, defendant to he guilty of forgery in the second degree, as defined hy Section 2001, Revised Statutes 1899, a conviction of forgery in the third degree as defined hy section 2009 cannot stand. Section 2001 declares that every person who shall falsely make or alter any cheek issued hy any bank, or drawn on any hank hy any other person, shall he adjudged guilty of forgery in the second degree, and the information charged defendant with feloniously altering a check drawn hy another on a hank. Section 2009 says that every person who shall falsely alter or forge “any instrument or writing, being or purporting to he the act of another,” the false altering or forging of which “is not hereinafter declared to he forgery in some other degree,” shall he guilty of forgery in the third degree. Section 2009 does not embrace the character of instruments designated in section 2001, and it substantially declares that forgery of a check drawn upon or by a hank shall not constitute forgery in the third degree, since that offense, hy section 2001, is made forgery in the second degree. Hence, a conviction of forgery in the third degree cannot stand.
    5. -: -: Conviction of Lower Degree: Statute. Sec. 2535, R. S. 1899, is not to he construed as authorizing the conviction of a defendant of a lower degree of an offense where the lower degree is not embraced within the higher degree of the crime. The statutes defining the different degrees of forgery denounce separate and distinct offenses. The rule that a defendant cannot complain of a conviction of the lower grade of a crime when the testimony tends to show him guilty of a higher grade, can only apply when the charge of the higher grade necessarily embraces the lower grade. Where defendant was not charged with the offense of third degree forgery, he cannot he convicted of that offense, and a charge of forgery in the second degree is not a charge of forgery in the third degree— the statutes designate different instruments, and make the false alteration of certain ones forgery in the second degree, and false alteration of others forgery in the third degree.
    6. -: Former Conviction. At a former trial defendant was convicted of forgery in the second degree, and upon appeal the information was held insufficient, and the cause remanded. Thereupon a sufficient information charging forgery in the second degree was filed, and upon his trial he was erroneously convicted of forgery in the third degree and upon appeal that judgment is reversed, the holding being that under the information and statutes he cannot be convicted of forgery in the third degree. Held, that defendant has never been either convieted or acquitted of forgery in the second degree, and his plea of former conviction is disallowed, and the cause remanded for a new trial under the present information charging forgery in the second degree.
    Appeal from Howell Circuit Court. — Hon. John T. Moore, Judge.
    Reversed and remanded.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) Instruction 2, given on the part of the State, informing the jury that if appellant cashed the forged check, as charged, in Howell county, the law presumed the forgery to have been committed in that county, unless the proof showed to the coDtrary, correctly declared the law on that phase of the case. State v. Allen, 116 Mo. 548; Sherwood’s- Crim. Law, p. 354. (2) The special plea in bar of autrefois acquit must be specifically pleaded to be available. R. S. 1899, sec. 2563; Kelley’s Crim. Law (2 Ed.), sec. 233; Sherwood’s Crim. Law p. 763; State v. Huffman, 136 Mo. 58. A motion in arrest only goes to defects appearing on the face of the indictment or the information. The plea of autrefois acquit cannot be raised in a motion in arrest. State v. Brown, 181 Mo. 192. (3) The trial court erred in appellant’s favor in giving instruction 1 on the part of the State, permitting the jury to find appellant guilty of forgery in the third degree instead of the second degree, as charged. It permitted the jury to find him guilty of forgery in the third degree, for which the minimum punishment is two years, which was given appellant, instead of finding him guilty of forgery in the second degree, for which the minimum punishment is five years, and which was the punishment assessed against appellant in the former trials of this cause. "We have examined appellant’s motion for a new trial in vain for an assignment of error that the court should have submitted this cause to the jury on the charge of forgery in the second degree instead of the third degree, as it did. Appellant had no complaint to make on this ground, and hence he wisely made no assignment in his motion to that effect. He was glad to have the court err in his favor. He was glad the jury was permitted to give him the minimum punishment of two years in the penitentiary instead of five years, as in the former trials in this canse. R. S_, 1899, sec. 2535'; State v. Ellis, 74 Mo. 207; State v. Lowe, 93 Mo. 547; State v. Gates, 130 Mo. 351; State v. Schieller, 130 Mo. 510; State v. Frazier, 137 Mo. 317; State v. Hancock, 148 Mo. 488,
   FOX, J.

The defendant has brought this cause to this court by appeal from a judgment of the circuit court of Howell county, convicting him of forgery in the third degree.

The prosecuting attorney of Howell county, on July 26, 1909, filed in the circuit court of said county an amended information containing one count, charging defendant with having forged, counterfeited, falsely made and altered a certain check on the 31st day of May, 1907, under the name of F. M. Willard, and payable to one Hamon Judd, on the First National Bank of West Plains, Missouri, for the sum of twenty dollars, said check being dated May 29, 1907. This cause was tried before Hon. John T. Moore, judge of the Twentieth Judicial Circuit, a change of venue having been taken from Hon. W. N. Evans, the regular judge of the circuit in which the county of Howell was situated.

This is the second appeal in this cause. Upon the former appeal the judgment of the circuit court was reversed and the cause remanded by this court on the ground of the insufficiency of the information. [See State v. Willard, 219 Mo. 721.] The case at bar was tried at the July term of the Howell Circuit Court, and at .such, trial the facts developed were substantially as follows:

That P. M. Willard, the prosecuting witness, is a cousin of defendant; that on the 29th day of May, 1907, said prosecuting witness, who then lived in Howell county, went across the county line into Oregon county, near a small country town by the name of Rover, where a game of “craps” and drinking seem to have been the order of the day. A number of citizens of Oregon county were present and appear to have joined in this day of festivities. While at this place of levity and on said day, said P. M. Willard gave his personal cheek to one Hamon Judd for the sum of two dollars on the First National Bank of West Plains, Missouri, said Judd paying said Willard one dollar in cash and a check for the sum of one dollar in exchange therefor. This two dollar check is the check alleged to have been forged and altered by raising to a twenty dollar check, as set out in the information.

The proof at the trial of this cause shows that the check alleged to have been altered and forged was seen in the possession of the defendant at the former trial of this cause; that defendant was seen to wrinkle and fold the check by one of the jurors in the former trial and the same was not produced at the trial of this cause, but was admitted to have been lost or destroyed.

The proof shows that said Judd sold and assigned said check for two dollars to defendant on May 30, 1907. Late on the afternoon of May 30, 1907, appellant had one Mrs. Thomas Overstreet (who, with her husband, was conducting a small country store and postoffice near said town of Rover, in Oregon county), to cash said two dollar check for him. This check was observed by both Mr. and Mrs. Thomas Overstreet to be for the sum of two dollars. Early on the morning of May 31, 1907, defendant came to the store of said Overstreet and requested them to cash a twenty-five dollar check of that date, given him by the Davidson Cattle Company, and payable at said National Bank at West Plains. Mr. Overstreet cashed said twenty-five dollar check for appellant, giving him in exchange the said two dollar Willard check, a twenty'dollar bill in currency, a small check of appellant’s and some small change, making a total of twenty-five dollars. After appellant hadl started away from this store on this occasion last stated, Mr. Overstreet called to him and asked him if he would take some checks for him (Overstreet) to said First National Bank at West Plains, and deposit for him, which appellant agreed to do; and thereupon said Overstreet gave appellant a number of checks, to-wit, for $41.59, $13.19, $3.50 and $25, the total amount of which !was $83.20 (this Davidson Cattle Company check for the sum of $25 which Overstreet had just cashed for appellant, was included in this total of $83.20). After appellant received said checks to be deposited for said Overstreet, he then went back to the home of one Mr. White, near by, where appellant and the witness Earl Gentry were boarding. Gentry went after his horse and appellant went into the White home and spent only a short time there, and during which time he was in the presence of Mr..White or a Miss White. Appellant, in company with said Gentry, left immediately for West Plains, and arrived there during the banking hours of said day; on reaching West Plains, appellant and said Gentry first went to a livery stable and from there appellant went to said First National Bank and made a deposit of $83.20 to the credit of said Thomas Overstreet, and received a deposit slip and delivered same to said Overstreet thereafter. On this deposit slip appeared a deposit of a twenty dollar check and five dollars in currency. The proof clearly shows that the F. M. Willard two dollar check to said1 Judd had been altered and raised to read twenty dollars, and this check is the twenty dollar check referred to in the deposit slip of said Overstreet; that the alterations were made in the handwriting of appellant, and to this fact a number of witnesses on behalf of the State so testified, and even one witness for appellant so testified.

The proof further shows that appellant deposited said Davidson Cattle Company check for twenty-five dollars to his own credit instead of placing it to the credit of said Thomas Overstreet, where it properly belonged. The proof further shows that said Over-street neither sent the five dollars in currency nor any twenty dollar check to be deposited to his credit, but on the contrary, he did send said Davidson Cattle Company check for twenty-five dollars, together with certain other checks of his, amounting to the total of $83.20, which he sent by appellant to be deposited to his credit, as aforesaid.

The testimony shows that the check in dispute circulated as a two dollar check from the day it was made by the prosecuting witness, F. M. Willard, to said Hamon Judd, through the hands of said Hamon Judd to appellant, from appellant to Mrs. Thomas Over-street, her husband, Thomas Overstreet, and back again to the hands of appellant, on the same day it was deposited by appellant as a twenty dollar check to the credit of said Overstreet.

Appellant testified as a witness in his own behalf and admitted that he bought the check in dispute from said Hamon Judd and paid two dollars for it; but denied that he had Mrs. Overstreet to cash is as a two dollar check, but contended at the second trial that he let Mr. Overstreet have the check. Two witnesses for appellant testified that they saw the check in dispute while held by said Hamon Judd, and that they saw the figures, representing twenty dollars, on said check, but that they did not read the word “twenty” as written out.

The appellant further offered proof that the prosecuting witness, Willard, had made statements showing malice on his part towards him, and that he was prosecuting him for that purpose.

The proof further shows that appellant’s reputation for truth and veracity in the community where he lived was not good, and it is adinitted in the record that appellant had served two years in the State penitentiary for grand larceny.

At the close, of the testimony the court instructed the jury upon all subjects to which the testimony [was applicable. The cause was submitted to the jury upon the testimony as adduced at the trial, together with the instructions of the court, and they returned a verdict finding the defendant guilty of forgery in the third degree and assessed his punishment at two years’ imprisonment in the State penitentiary. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were entered in accordance with the verdict returned by the jury and from this judgment the defendant prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The defendant is not represented in this court; however, in eomplicance with the provisions of the statute, we have examined the record before us with the view of ascertaining if any substantial error was committed by the trial court in the disposition of this case, and will give expression to our views resulting from such examination.

I.

The information upon which the judgment in this cause rests contains every essential element necessary to constitute the offense with which the defendant was charged. Upon the former appeal of this cause the information was held insufficient, and the defects as pointed out in that information were fully covered in the information in this case; hence, it must he held that this information is sufficient both in form and substance and! fully advises the defendant of the nature and character of the crime with which he was charged. [State v. Willard, 219 Mo. 721; Kelley’s Crim. Law (2 Ed.), sec. 773.]

n.

This brings us to the consideration of the instructions as given by the court applicable to the facts developed upon the trial. Instruction numbered 2 substantially declared the law to the jury that if the check in question was changed or altered as defined in the first instruction, and that soon thereafter the defendant had in his possession such check and presented the same at the First, National Bank of West Plains, in Howell county, Missouri, then it will be presumed that such alteration was made in Howell county, unless the contrary appears from the evidence. That instruction is in harmony with well-considered cases íd this State. [State v. Yerger, 86 Mo. 33; State v. Haws, 98 Mo. 188; State v. Burd, 115 Mo. 405.] Gantt, J., in the case of State v. Allen, 116 Mo. 548, in discussing the proposition involved in instruction numbered 2, as herein suggested, very appropriately made this comment upon the authorities: “Sherwood, J., in State v. Yerger, 86 Mo. 33, reviewed the authorities and reached the conclusion that the possession of forged paper, or, at all events, the uttering of it, in the county where the indictment is found, is cogent evidence to be addressed to the jury, that the forgery was committed by defendant in the county. [2 Bishop on Criminal Procedure, sec. 433; Com. v. Talbot, 2 Allen 161; State v. Morgan, 2 Dev. & Bat. 348.] State v. Yerger was subsequently cited and relied on in State v. Haws, 98 Mo. 188, to sustain a conviction of forgery, based1 upon the presumption arising from the possession of the forged instrument, and in the recent case of State v. Burd, 115 Mo. 405.” Applying the rule as announced in the Allen case this instruction must be held to have correctly declared the law.

The most serious proposition with which we are confronted is the action of the court in giving instruction numbered 1, authorizing the jury, upon the finding of the state of facts as embraced in the charge in the information, to find the defendant guilty of forgery in the third degree and assess his punishment at imprisonment in the penitentiary for a term not less than two nor more than five years. It will be observed that this instruction authorized the conviction of the defendant of an offense, that is, of forgery in the third degree, which was not embraced nor included in any manner in the information filed by'the prosecuting attorney. If this instruction constitutes reversible error such error was clearly preserved in the-fourteenth gound of the motion for new trial, wherein it is alleged that “the court improperly instructed the jury in each of the instructions on the part of the State as to the law in the case, and did not instruct as to the whole law in the case.” That assignment of error in the motion for new trial challenges the correctness of all the instructions given on the part of the State. But aside from that, if the defendant was convicted of an offense which was not embraced in the charge made in the information then this point is also saved by the motion in arrest of judgment, for the reason that the information, as well as the verdict and judgment, constitute a part of the record proper, and the motion in arrest of judgment charges in one of the grounds “that upon the record the judgment is erroneous.”

The section of the statute upon which the information is predicated, is 2001, which provides that “every person who shall forge or counterfeit, or falsely make or alter, or cause or procure to be forged, counterfeited or falsely made or altered: First, any promissory note, bill of exchange, draft, check, certificate of deposit, or other evidence of debt, being or purporting to be made or issued by any bank incorporated under the laws of this State, or of any State-, Territory, government or country; or, second, any order or check being or purporting, to be drawn on any such incorporated bank, or any cashier thereof, by any other person, company or corporation, shall, upon conviction, he adjudged guilty of forgery in the- second degree.” It will be observed that the first subdivision -of that section treats of alterations concerning promissory notes, bills of exchange, drafts, checks, certificates of deposit, or other evidence of debt, being or purporting to be made or issued by any bank incorporated under the lajws of this State or of any other State, etc. The second subdivision of that section has reference to any order or check being or purporting to be drawn on any such incorporated bank, or any cashier thereof, by any other person, company or corporation. It is manifest under the provisions of that section that forgery in the second degree, as therein defined, must consist of counterfeiting, falsely making or altering either a promissory note, bill of exchange, draft, check, certificate of deposit, or some- other evidienee of debt, being or purporting to be made or issued by an incorporated bank, or being or purporting to have been drawn on such incorporated bank, or some cashier thereof by any other person, company or corporation.

The offense charged in the information against the defendant falls directly within the provisions of section 2001, for the reason that the defendant is charged with willfully and unlawfully and feloniously forging, counterfeiting and falsely making and altering a certain check purporting to he made by one F. M. Willard, under the name of P. M. Willard, on thePirst National Bank of West Plains, Missouri, a corporation duly incorporated and existing under the laws! of the United States.

It is obvious that the court by instruction numbered 1 authorized the conviction of the defendant of.' the offense of forgery in the third degree as it is embraced in section 2009, Revised Statutes 1899. That" section provides that “every person who, with intent' to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing, being or purporting to be the act of another, by which any pecuniary demand or obligation shall be or purport to' be transferred, created, increased, discharged or diminished, or by which any rights or property whatsoever shall be or purport to be transferred, conveyed,, discharged, increased or in any manner affected, the; falsely making, altering, forging or counterfeiting of which is not hereinbefore declared to be forgery in some other degree, shall, on conviction, be adjudged’ guilty of forgery in the third degree.” Manifestly that section does not embrace the character of instruments purporting to have been issued by incorporated banks or drawn upon incorporated banks or cashiers* thereof, for the reason that in express terms the instruments embraced in and the offense defined by section 2001 are excluded from the provisions of section 2009.

It will be observed that under the provisions of" the last quoted section, 2009, the nature and character of the instruments are designated, as well as the nature and character of the alterations essential to constitute an offense of forgery in the third degree; then follows the express language which excludes it from ¡ the provisions of section 2001, where it is said in’ the closing part of section 2009, that “the falsely mak— ing, altering, forging or counterfeiting of which is not hereinbefore declared to be forgery in some other degree, shall, on conviction, be adjudged guilty of forgery in the third degree.” In other words, that section in effect substantially declares that a check drawn (as the one in the case at bar) upon any incorporated bank or any cashier thereof by some other person, company or corporation, which has been counterfeited', forged or altered, shall constitute forgery in the second degree, and does not constitute forgery in the third degree under the provisions of section 2009. Stating the proposition in another form, it is that the forging or altering of a check drawn by any person, company or corporation upon any incorporated bank is declared, under the provisions of section 2001, to be forgery in the second degree; hence, it follows that the defendant, upon the charge in the information, could not be convicted of forgery in the third degree, for the reason that in the language of the statute the offense with which he was charged and which the testimony tended to show him guilty of had hereinbefore been declared by the provisions of section 2001 to be forgery in the second degree, and the provisions of section 2009, in substance, make the offense of forgery in the third degree conditional that the instrument charged to have been forged or altered has not hereinbefore been declared to be forgery in some other degree. Upon this state of the record we are unable to see any escape from the conclusion that the verdict and judgment in this cause is erroneous.

In support of this finding and judgment disclosed by the record, convicting the defendant of forgery in the third degree, the learned Attorney-Greneral directs our attention to the provisions of section 2535; Revised Statutes 1899, which in substance provides that judgments and other proceedings shall not be stayed,.arrested or in any manner affected for any error committed at the instance or in favor of the defendant, or because tbe evidence shows or tends to show the defendant guilty of a higher degree of the offense, than that of which he was convicted. In addition to this section our attention is also directed to numerous cases decided by this court supporting judgments finding defendants guilty of lower degrees of crime than the one charged in the indictment or information.

Obviously the section of the statute to which counsel has directed our attention is not to be construed as authorizing the conviction of a defendant of a lower degree of offense which is not embraced within the charge of the higher degree of the crime. It has been expressly ruled by this court in State v. Jenkins, 36 Mo. 372; State v. Davidson, 38 Mo. 374, and in State v. Brannon, 55 Mo. 63, that a defendant charged with robbery in the first degree cannot be convicted of robbery in the second degree. While there are degrees of robbery, as well as degrees of forgery, yet a mere casual reading of the statute defining the different degrees will clearly demonstrate that they are separate and distinct offenses. The old familiar and Iwellrecognized rule that a defendant cannot complain of conviction for a lower grade of the crime when the testimony tends to show him guilty of a higher grade, can only be maintained1 upon the theory that in the charge of the higher grade of crime the lower grade is necessarily embraced. It is upon this principle that the cases to which, our attention has been directed maintained the judgments for lower grade of the offenses than the ones charged in the indictments or in-formations. Applying the rules of law as herein indicated, the defendant was not charged with the offense of forgery in the third degree, and under the provisions of the statute cannot be convicted of that offense.

There is no merit in that part of the motion in arrest of judgment which undertakes to set up a special plea in bar of autrefois acquit, for the reason that upon the disclosures of the record he has never been acquitted of tbe offense charged in the information, that of forgery in the second degree. Upon the former trial he was convicted of forgery in the second degree, and upon appeal to this court the information upon which he was tried1 in that case was held insufficient and the cause remanded for a new trial. Upon the present trial he was neither convicted nor acquitted of such charge, that of forgery in the second degree, but as we have herein pointed out, was erroneously ■convicted of forgery in the .third degree.

We find no error in the instructions given, with the exception of instruction numbered 1, to which we have fully made reference.

The proof developed! upon the trial of this cause tends very strongly to show that the defendant is guilty of the offense of forgery in the second degree, and the information upon which he was tried at the last trial charges, as we have herein stated, every essential element of the offense of forgery in the second degree, but for the errors pointed out in instruction numbered 1 and the verdict as returned1 by the jury and the judgment as rendered by the court, the judgment in this cause should be reversed and the cause remanded for a new trial. It is so ordered.

All concur.


text:
    THE STATE v. W. E. RIPPEY, Appellant.
    Division Two,
    May 26, 1910.
    1. HEARSAY: No Objections. If no objections were made and no exceptions were saved, statements made by tbe prosecuting witness of wbat others bad said to bim cannot on appeal be beld to have been wrongfully admitted in evidence.

      2. NEW TRIAL: Newly Discovered Evidence: Ignorance of Right to Testify. Before tbe court should grant a new trial on tbe ground of newly-discovered evidence it must appear that tbe defendant did not know of the evidence in time to use it on the trial. And where defendant was' indicted for marking and branding a steer, the property of another, with the felonious intent to convert him to his own use, and before the trial the steer had been taken from him in a replevin suit, and in his affidavit in support of his motion for a new trial he states his wife and daughter were not permitted to testify in that suit, and he supposed they would not, therefore, be permitted to testify in this, and for that reason had not subpoenaed them as witnesses, yet the record shows that the court appointed counsel to defend him and no application for a continuance was made, the trial court did not commit reversible error in overruling the motion.
    3. -: -: Material. The newly-discovered evidence should be so material that it would probably produce a different result if a new trial were granted; and whether or not it is of that materiality is largely a question for the trial court.
    Appeal from Pulaski Circuit Court. — Hon. L. B. Woo chide, Judge.
    Arririmed.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Only two instructions were given to the jury on behalf of the State. Instruction 1 embraced all of the elements contained in the indictment and properly marked out the punishment as by the statute provided. R. S. 1899, sec. 1898 and 1903; State v. Price, 186 Mo. 140. (2) Instruction 2, on the part of the State, told the jury that the defendant was a competent witness in his own behalf, but that the jury might, in weighing his testimony, take into consideration the fact that he was the defendant on trial. This instruction contained no objectionable features. (3) The court instructed upon reasonable doubt in defendant’s second instruction, and that is sufficient. Appellant made no request that the court instruct upon all the law of the case. State v. Finley, 193 Mo. 202. If defendant desired instructions on any particular subject he should' have requested1 them. State v. Graves, 194 Mo. 452. (4) In order for the appellant to obtain a new trial on newly-discovered evidence, he must show, first, that the evidence has come to his knowledge since the trial; second,, that it was not owing to the want of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result if a new trial were granted; fourth, that it is not cumulative only; fifth, that the affidavit of the witness himself can he produced or its absence accounted for; and, sixth, that the object of the testimony is not merely to impeach the character or credit of a witness. State v. Speritus, 191 Mo. 42; State v. Thurman, 121 Mo. App. 377; State v. McKenzie, 177 Mo. 699; Berry v. State, 10 Ga. 527; State v. McLaughlin, 27 Mo. 112. The appellant has not shown due diligence; and the appellant does not show that the newly-discovered evidence is so material that it.would produce a different result if a new trial were granted. However, as to the last there is sometimes a difference of judicial opinion, but as to the first there can be no question. State v. McCullough, 171 Mo. 571; State v. Finn, 199 Mo. 604; State v. Smith, 65.Mo. 313; State v. Myers, 115 Mo. 394; State v. Miller, 144 Mo. 26; State v. Allen, 171 Mo. 562; State v. Reynolds, 171 Mo. 552.
   GANTT, P. J.

At the March term, 1909, the grand jury of Pulaski county returned an indictment against the defendant, charging him with having on or about the 7th of December, 1908, at the said county, unlawfully and feloniously placed and affixed his own brand upon a certain light red steer, the property of one G. W. Berry, and altered the mark of the said animal, with the intent then and there feloniously to steal and convert the said steer to his own use. The indictment is drawn under section 1903, Revised Statutes 1899, and sufficiently charges the offense.

The defendant was duly arrested and arraigned and entered his plea of not guilty. It appears that the circuit court appointed counsel to defend him. At the September term, 1909, of the Pulaski Circuit Court, the defendant was put upon his trial and convicted. He is not represented by counsel in this court save and except by typewritten brief filed under rule of the court.

The testimony on the part of the State tended to show that in September, 1908, E. W. Berry, the prosecuting witness, resided in the southern part of Pulaski county; that in September he bought seven head of yearling steers from one Dick Jones, and they were all marked with a split in each ear and not otherwise marked or branded; that Berry wintered the cattle through the winter of 1907 and 1908, and in the spring of 1908, between the 15th and the 20th of April, he marked these cattle, which he had bought of Jones, with his own ear mark, which was a crop and a split in each ear of the cattle. He also cut the end off of both ears. He also marked his cattle by putting his 1'abel in the upper part of the right ear, and after so marking the cattle he turned them out upon the commons or range. About the middle of the summer of 1909 he sold his cattle, but when he came to gather them up from the range he could not find the light red steer, the alleged felonious branding and marking of which constitutes the basis of this prosecution.

It appears from the evidence that the defendant had moved upon the farm which had been occupied by Dick Jones, and was living there at the time the controversy arose over the ownership of the steer. In November, 1908, one Ben Poston claimed that he had seen one of Berry’s steers with defendant Rippey’s cattle, and that this steer still had the label of Berry in its ear and also had the ear marks of Berry. From information received from Poston, Berry went to Rippey’s home and inquired about his lost steer and the defendant replied that he had not seen it. Berry testified that he went again when Rippey, the defendant, was not at home, and that he found his steer, or one that he identified as his, with Rippey’s cattle, and that the ear mark had been recently made on his ear. He testified that some three or four days previous to the date on .which he identified his steer in defendant’s pasture, he attended a sale and saw Rippey, the defendant, buy some cattle; that he went to the home of the defendant and talked with the defendant’s wife and inquired about his steer and she said it was not there. He went again to Rippey’s house and found that the cattle which the defendant had recently bought were fresh-branded. Thereupon Berry replevied the' steer in the justice’s court, and upon a trial Berry was adjudged the owner of the steer. Thereupon the grand jury indicted the defendant.

Berry testified that the hole which he had made in the ear of the steer for his label was still in the ear of the animal, but defendant had changed the label and put it in the'left ear, and the defendant’s brand B was on the left hip of the steer. He testified that in his opinion it was his steer, but there might possibly be two steers exactly alike, but he did not think so. From the make up of the steer and marking or label, he was thoroughly satisfied it was his steer. On cross-examination he testified that from the time he turned the steer out on the range in April he did not see it any more until November. He testified that he inquired from the defendant where he got the steer and the defendant said he bought it from Hancock. The State also offered S. P. Jones as a witness who testified that he had sold a red steer to Berry, the prosecuting witness, and! he identified the steer in the defendant’s pasture as the one he had sold to Berry. Other witnesses testified that in their opinion the steer was the property of the prosecuting witness.

The defendant testified in his own behalf that he bought some cattle from Orval Brown, among others the steer in controversy. That when the prosecuting witness and some others came to his house he did not know they were after the steer. Mr. Berry told him that he had found a steer on defendant’s place that he thought was his, but defendant said, “I guess not.” He testified he had bought the cattle, and he asked Berry to leave them there until morning, and give him a chance to prove where he got the steer, but Berry said, “No, I have come to take him and I am going to take him to-night.” “He asked me where I got it, and I do not know for sure whether I got him from Orval Brown or Hancock. When they took the steer, I went to Crocker and called up Mr. Hancock, but after talking with Hancock, I concluded I must have gotten it from Mr. Brown.” Thereupon, he requested Mr. Brown to go home with him and pick out the cattle which Brown had sold him. He had bought five from Brown, and Brown found four of them on his place, but said one of the number he had sold him was missing. Thereupon he and Brown went to Berry’s and Brown identified the steer in controversy, as the one which he had sold the defendant. He testified to labeling and branding his cattle after he had bought them. He explained why he did not mark all the cattle at one time — because his chute was not large enough to hold them all at once. He testified that he wintered and pastured this steer until Berry came and got him. He did not know Berry’s mark, but when he bought this steer he tried to put it in his own mark. He got it from Mr. Brown, and that by the result of the replevin suit he was short one steer. Pie testified that he honestly believed that it was his steer, and that if it was not he was honestly mistaken. His testimony also was that he lived only about three or four miles from where Berry lives.

The court instructed the jury that if they found that on or about the 7th of December, 1908, the defendant in said county did willfully alter the mark upon a steer, charged in the indictment, with the fraudulent intent to steal the said steer, and convert it permanently to his own use, against the will of the owner and deprive the owner permanently, and against his will of the use thereof, and knowing that it was not his own, and that the said steer was at the said time and place the property of the G-. W. Berry, they would find the defendant guilty of grand larceny. The court also instructed the jury that the defendant was a competent witness in his own behalf, in the ordinary formula.

On the part of the defendant the court instructed the jury that although they might find from the evidence that the defendant changed the mark on the steer and that it was not his own steer, yet, if he believed that it was his own steer and! changed the mark under that belief, it would not be larceny, and they should acquit him. The court also gave the usual instruction on the presumption of innocence and on reasonable doubt.

Under the instructions of the court and the evidence the jury found the defendant guilty and assessed his punishment at imprisonment in the penitentiary for two years.

I. The first assignment of error is that the court, permitted the witness Berry to give hearsay statements that were very detrimental to the defendant. We have read this whole record very carefully and the witness Berry did make statements of what Mr. Wingo and others had said to him, but we find no objection whatever and no exceptions saved on this account, and therefore this alleged error cannot avail the defendant in this court.

II. The defendant urgently prays for a new trial on the ground of newly-discovered evidence. Among the witnesses whose evidence he desired were his wife, daughter and Orval Brown. In explanation of why he did not have his wife present to testify in his behalf, he states in his affidavit in support of his motion for new trial, that the court refused to permit her to testify in the replevin suit between Berry and himself for the possession of this steer, and being an ignorant man he thought that she could not testify in this case, and therefore he did not have her subpoenaed or bring her to court, and the same is true in regard to his daughter. Mrs. Rippey in support of her husband’s application for new trial on account of her absence, states in her affidavit that she is the wife of the defendant; that she knows the particular steer in question claimed hy the prosecuting witness Gr. W. Berry, and knows that this steer had been owned by her said husband and in his actual possession more than a year prior to the 7th of September, 1908; that she herself wrote the check for the payment of the same sometime in the year 1907; that she was present and assisted her husband in branding this identical steer more than one year prior to December, 1908, and that said brand became dim, and she assisted her husband to rebrand this particular steer with the other steers, and to relabel him, and that she is positive that at no time was the label of Gr. W. Berry ever in the ear of this particular steer, and that she assisted her husband in feeding and caring for this steer during the winter of 1907. She is not mistaken as to the identity of the steer. The affidavit of Orval Brown states that he is acquainted with the defendant W. E. Rippey, and that he sold Rippey five steer calves in the spring of 1907; that the defendant’s wife wrote the check, and that he saw the steer in question in Mr. Berry’s pasture, and that prior to seeing him in the said pasture he looked for the five calves to see if he could identify them as the calves which he had previously sold to the defendant, and that after this question of title to this steer arose he went and looked for said calves and that he could identify two of them to a reasonable certainty, but be could not find the fifth calf, and he went to Mr. Berry’s pasture and1 there found the steer in question, which very much resembled one of the calves that he sold the defendant as above stated, and that its color resembled the one that he let-defendant have.

Surely by the ordinary rule the defendant has shown little or no diligence whatever to procure the evidence of his wife and daughter or Orval Brown. It is probably true that, owing to the fact that he had not employed any attorney to advise him, he was ignorant of the importance of their testimony in his case. But the court appointed counsel for , him, and it would seem that the most ordinary diligence would have suggested an application for a continuance until he could have procured these witnesses, all of whom seem to have resided in the same county and their affidavits were secured in time for a motion for new trial. The courts generally are reluctant to grant new trials upon the ground of newly-discovered evidence. In this State it has been almost invariably ruled that before a court should grant a new trial on the ground of newly-discovered evidence it must appear that the party did not know of the evidence in time to use it on the trial. Obviously this could not apply to Mr. Brown or to the defendant’s wife, as he knew in both instances before the trial what-their testimony would be, and obviously he could not show that he could not by diligence have discovered it in time for the trial.

In the third place it is required that such evidence should be so material that it probably would produce a different result if a new trial were granted1. This ground appeals especially, we think, to the judge who heard the case, as he would be in a much better position to judge of the probabilities of a different result if the testimony could be procured. While it is true the defendant files the affidavit of Mr. Brown, showing that he had sold the defendant five calves, and that the steer over which this controversy has arisen was very much like one of the calves that he sold the defendant, this witness also testified on the hearing of a motion for new trial that all the calves that he sold Rippey had horns; that he did not examine this steer at Berry’s close enough to see whether it had horns or not, but all the other testimony on the part of the State tended to show that the steer for which the defendant was indicted was a muley, so that upon the consideration of this application for a new trial we see no ground for interfering with the judgment of the circuit court in denying the same. [State v. McLaughlin, 27 Mo. 112; State v. Finn, 199 Mo. 604.]

The instructions of the court covered all the propositions of law arising upon the evidence, and there was sufficient evidence, if believed by the jury, to sustain their verdict, and that verdict met the approval of the trial judge, and under these circumstances this court must defer to the judgment of the jury upon the evidence. We have been unable to find any reversible error in the record and accordingly the judgment must be affirmed.

All concur.