State v. Littrell

BURGESS, J. At the February term, 1902, of the circuit court of Chariton county, defendants were convicted of grand larceny and their punishment fixed at two years imprisonment, respectively, in the penitentiary, under an information theretofore filed by the prosecuting attorney of said county in the office of the clerk of the circuit court charging them with having on December 10,1901, at said county, unlawfully and felon-iously stolen thirty-five dollars of lawful money of the value of thirty-five dollars, and two pairs of spectacles of the value of one dollar per pair, and one pocketknife of the value of one dollar, all of the aggregate value of thirty-five dollars, all of the money being the personal property of one John Adams. The conviction was for stealing the money alleged to have been stolen. They appeal. It is only necessary to a disposal of the case by this court to pass upon one question, and that is with respect to instruction numbered one, given by the court on behalf of the State which defendants insist is erroneous in that it does not require the jury to find that the money [15] was wrongfully and fraudulently taken and carried away by the defendants with the felonious intent to convert the same to their own use, and to make it their own property without the consent of its owner. ’ ■ The instruction reads as follows: “1. The court instructs the jury that if you believe from the evidence beyond a reasonable doubt that the defendants, Charles Littrell and George Proffitt, at the county of Chariton, in the State of Missouri, on or about December 10, A. D. 1901, and within three years next before the filing of the information in this case, to-wit, the---day of December, A. D. 1901, did then and there willfully and feloniously steal, take and carry away thirty-five dollars lawful money of the United States of the value of thirty-five dollars or any other amount of money of the value of-thirty dollars or more, the personal property of John Adams, then you will find the defendant guilty of grand larceny and assess the punishment of each defendant separately at imprisonment in the penitentiary for a term not less than two years nor more than five years." Defendants’ contention is conceded by the State to be settled by a uniform decision of this court (State v. Gray, 37 Mo. 463; State v. Shermer, 55 Mo. 83; State v. Ware, 62 Mo. 602; State v. Moore, 101 Mo. 316; State v. Lackland, 136 Mo. 26; State v. Rutherford, 152 Mo. 124) and that the judgment must of necessity be reversed. It is so ordered, and the cause remanded. All concur.