Summary
upholding conviction for larceny at night even though the prosecution failed to introduce an essential element of the crime — that it was committed during the nighttime
Summary of this case from U.S. v. Lopez-AlvarezOpinion
June 5, 1931.
1. CORPUS DELICTI: Confession: Full Proof. Confession of a crime, not made in open court or before a committing magistrate, and without proof aliunde that a crime has been committed, will not sustain a conviction; but full proof of the body of the crime, independent of the confession, is not required, but on the contrary what may seem to be slight corroborating facts are sufficient to establish the corpus delicti.
2. ____: ____: Stealing Chickens: In Nighttime. Stealing chickens in the nighttime is larceny, and the time when they are stolen affects the grade of the larceny and the punishment therefor, but is not such an ingredient of the offense that there must be proof, independent of a confession, tending to show that they were stolen in the nighttime, on the theory that the nighttime feature is a part of the corpus delicti, before the confession can be considered. Evidence, independent of the confession, showing a larceny of the chickens, may be considered, and if it and the confession show a larceny in the nighttime, the two, taken together, will establish the corpus delicti of the crime of stealing chickens in the nighttime.
3. CONFESSION: To Officer: While Under Arrest. A confession is not to be excluded on the ground that it was made in response to questions propounded by one in authority, and the court cannot be charged with error in admitting it where such was the only objection. Nor is it rendered inadmissible because it was made while defendant was under arrest, nor merely because he was exhorted or urged to speak the truth, no threats or promises being made.
4. ____: Voluntary: Promise: Objection. If the justice of the peace before whom the case was pending said to defendant that "all we want is the truth and it might go easier with you if you will tell the truth and nothing but the truth," and defendant was induced thereby to make a confession, the objection to its admission in evidence ought to have been that it was not voluntary and that defendant was induced to make it by an implied promise of a mitigated punishment; but where there was no such objection, but the only objection was that it was given in response to questions propounded by one in authority, the trial court did not err in admitting the confession in evidence, and no other objection than the one made at the trial can be considered in the appellate court. This court cannot consider an objection that was not made at the trial: it cannot permit defendant to broaden his objection and here urge that the confession was not voluntary, where he did not ask the trial court to so rule.
5. ____: Informing Defendant of His Right. A ruling of the trial court refusing to permit the justice of the peace to say whether, at the time defendant made his confession, he informed defendant that he was entitled to consult counsel or whether he told him that what he said might be used against him, cannot prejudice defendant, where it is already apparent that the justice had not so informed him. Besides, failure to give such information does not render the confession inadmissible in evidence.
6. STEALING CHICKENS: In Nighttime: Petit Larceny: Instructions. Where the jury are required by the instruction to find, in order to convict, that the chickens were stolen from the owner's messuage and in the nighttime, it is not error to refuse an instruction for petit larceny. If the jury find the defendant guilty in obedience to such instruction, the punishment, under the statute, can still be as low as it could be for petit larceny. And where defendant's contention is that the proof does not show that the chickens were stolen in the nighttime, an instruction given for him telling the jury that although they find that defendant stole the chickens, they cannot convict him of any crime whatever unless they find that the larceny was committed in the nighttime, is more favorable to him than the one refused which would have told them that if they had a reasonable doubt whether the larceny was committed in the nighttime they could convict defendant only of petit larceny.
7. INSTRUCTION: Oral Statements: Voluntary. The giving of an instruction relating to the effect of oral statements in the form often approved, with the additional directions that such statements should be considered with caution on account of the liability of witnesses to forget or misunderstand what was really said or intended, while usually unnecessary, and though it does not require the jury to find that such statements were voluntarily made, is not reversible error.
8. REOPENING CASE: Discretion. Granting the State permission to reopen the case to present necessary evidence omitted in chief, after both sides have rested and a demurrer has been presented by defendant, is a matter resting largely in the discretion of the court, and will not be held error unless it is perceivable that defendant was prejudiced thereby.
9. DEFINITIONS: Messuage. Where the instruction required the jury to find that the chickens were stolen "from the messuage of the said Trav Johnson and from the premises upon which the dwelling house of the said Trav Johnson is situated," no further definition of the word "messuage" was necessary.
10. ____: Nighttime. Where defendant's proven admission was that he took the chickens "Friday night between eight and ten o'clock" no definition of "nighttime" was necessary.
11. INSTRUCTION: No Assignment. It cannot be held that the court erred in refusing defendant's requested instruction on circumstantial evidence where no such error is assigned in the motion for a new trial.
Appeal from Texas Circuit Court. — Hon. J.H. Bowron, Judge.
AFFIRMED.
Barton Moberly for appellant.
(1) The corpus delicti is not established until each essential element of the offense charged is proved by substantial evidence. State v. Young, 237 Mo. 170; State v. Scott, 39 Mo. 424; Westrand v. People, 213 Ill. 72, 40 A.L.R. 464; State v. Armstrong, 4 Minn. 335, 40 A.L.R. 472; 16 C.J. 771, 773. (2) The naked confession of the defendant is not sufficient to establish the commission of a crime in toto or any essential element thereof. State v. Mullinix, 301 Mo. 385; State v. Young, supra; State v. Scott, supra; 40 A.L.R. 464-72; 7 R.C.L. 777; 16 C. J, 771, 772; Underhill on Criminal Evidence (3 Ed.) 33. (3) Where there is evidence of the commission of an offense of a lesser degree than the one charged, it is the duty of the court to instruct on such lesser offense. R.S. 1929, sec. 3681; 36 C.J. 933; 16 C.J. 1023; State v. Donovan, 121 Mo. 496; State v. Thompson, 137 Mo. 620; State v. Norman, 101 Mo. 520; State v. Burrell, 298 Mo. 672; State v. Johnson, 6 S.W.2d 898. (4) A confession made by accused under promise or encouragement of any hope or favor made or held out to him by officers or other persons in authority or by private person in their presence is not voluntary and is therefore inadmissible. 16 C.J. 717; 1 R.C.L. 553; Underhill on Criminal Evidence (3 Ed.) 307; Conley v. State, 12 Mo. 717; State v. Hunter, 181 Mo. 316; State v. Murphy, 146 Mo. App. 707; State v. Hart, 292 Mo. 74, 90; State v. Keller, 263 Mo. 539; State v. Thomas, 250 Mo. 189; State v. Blackburn, 273 Mo. 469; State v. Young, 119 Mo. 495; State v. Caperton, 276 Mo. 314; State v. Naughton, 221 Mo. 398. And confessions made to persons in authority immediately after such hope or encouragement is given are presumed to have resulted from such inducements. 16 C.J. 727. (5) While the competency of a confession or an admission is a preliminary question of law to be determined by the court, yet the defendant is entitled to have all the evidence bearing upon the voluntary character of such confession submitted to the jury to advise them concerning the weight and value such confessions merit. 1 R.C.L. 577; State v. Yeoger, 12 S.W.2d 30; State v. Ellis, 294 Mo. 269; State v. Jones, 171 Mo. 407. (6) Instruction that what defendant said against himself the law presumes to be true is such a comment on the evidence as to constitute reversible error. Especially is this true when (a) The evidence creates a grave doubt that the statements referred to were voluntarily made. (b) The instruction does not require a finding that the statement was voluntarily made, and no other instruction is given touching on that issue. (c) The giving of such instruction is equivalent to a directed verdict of guilty. Sec. 3694, R.S. 1929; State v. Thomas, 250 Mo. 215; State v. Bell, 70 Mo. 633; State v. Caperton, 276 Mo. 314; State v. Nibarger, 255 Mo. 289; State v. Creely, 254 Mo. 382; State v. Walser, 318 Mo. 833; State v. Sanford, 317 Mo. 865; State v. Miller, 307 Mo. 365; State v. Johnson, 316 Mo. 86; State v. Lowry, 12 S.W.2d 469; State v. Hersh, 296 S.W. 433; State v. Swarens, 294 Mo. 139. (7) Where technical terms are used in an instruction they should be defined. If defendants offer an instruction correctly defining such term, it is the duty of the court to give it. If the instruction offered by the defendant is not correct and is refused by the court it is the duty of the court on request to prepare and give an instruction correctly covering the matter involved. 16 C.J. 966; State v. Skaggs, 159 Mo. 581; State v. McLain, 159 Mo. 340; State v. Reed, 154 Mo. 123; State v. Strong, 153 Mo. 548. (8) Where there is only circumstantial evidence of the commission of the crime or any integral element thereof, it is error for the court to refuse an instruction on circumstantial evidence. 16 C.J. 1011. Crowell v. State, 6 S.W. 319, 24 Tex. App. 404[ 24 Tex.Crim. 404]. (9) What witnesses may have said or done in the way of identifying persons or things out of the presence of defendant is hearsay, and as such is not admissible in evidence. State v. Baldwin, 317 Mo. 759. (10) It is improper to cross-examine the wife of defendant concerning matters not brought out on her examination in chief. Sec. 3692, R.S. 1929.
Stratton Shartel, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
(1) It has long been the rule in this jurisdiction that all of the elements of the corpus delicti, as well as the criminal agency of the accused, may be proved by circumstantial or presumptive evidence, when direct proof is not obtainable. State v. Poor, 286 Mo. 644; State v. Concelia, 250 Mo. 411; State v. Vinton, 220 Mo. 90; State v. Barrington, 198 Mo. 113; State v. Henderson, 186 Mo. 473. (a) The corpus delicti may be proved by appellant's extra-judicial confession together with corroborative circumstances. State v. Johnson, 236 S.W. 366. (b) Confession of crime with proof aliunde that a crime has been committed will sustain a conviction. State v. Trosper, 293 S.W. 487; State v. Mullinix, 301 Mo. 391; State v. Coats, 174 Mo. 417; State v. Knowles, 185 Mo. 177; State v. Wooley, 215 Mo. 671; State v. Flowers, 311 Mo. 515. (c) Full proof of the body of the crime, independently of the confession, is not required, but, on the contrary, what may seem to be slight corroborating facts have been held sufficient. State v. Trosper, 293 S.W. 487; State v. Mullinix, 301 Mo. 391; State v. Skibiski, 245 Mo. 463; State v. Johnson, 236 S.W. 366; State v. Keltner, 278 S.W. 826; State v. Sandoe, 316 Mo. 63; State v. Cantrell, 6 S.W.2d 841. (d) In this case proof of the corpus delicti is not based on the uncorroborated confession of the appellant. State v. Flowers, 311 Mo. 510. (e) The corpus delicti may be established by circumstantial evidence. State v. Emerson, 318 Mo. 642; State v. Sandoe, 316 Mo. 64; State v. Wheaton, 221 S.W. 28; State v. Schyhart, 199 S.W. 211; State v. Vinton, 220 Mo. 100. (2) The court did not commit error in admitting in evidence the confession made by appellant after the arrest. (a) Proof of the corpus delicti was sufficient to make appellant's confession admissible. State v. Cantrell, 6 S.W.2d 841. (b) The fact that the accused is under arrest at the time he makes the confession is not sufficient to exclude his statement as being other than entirely voluntary. In order to exclude the confession on the ground that it is not voluntary it must affirmatively appear that some inducement to confess was held out to the accused by or in the presence of someone having authority. The confession is presumed to be voluntary until the contrary appears. State v. Hart, 292 Mo. 89; State v. Myers, 312 Mo. 96; State v. Saale, 308 Mo. 583; State v. Young, 314 Mo. 629; State v. Adams, 316 Mo. 166. And it does not matter that the confession was elicited through questions of the officer or person in authority. The test is whether the statement was entirely voluntary. State v. Hart, supra; State v. Myers, supra. (c) Where there is no evidence that defendant was threatened or was offered immunity his statements obtained by the questioning of officers while he was under arrest are not inadmissible nor incompetent. State v. Green, 229 Mo. 651; State v. Meyers, 293 Mo. 113; State v. Seward, 247 S.W. 153. (d) It is the settled law of this State that a mere adjuration to speak the truth does not vitiate a confession, no threats or promises being employed. State v. Armstrong, 167 Mo. 269; State v. Johnson, 316 Mo. 93. (e) The fact that a voluntary confession was made without accused being cautioned or warned that it might be used against him does not affect its admissibility. State v. Johnson, 316 Mo. 92. (f) A statement to the accused by the persons having him in charge: "Now, Bob, you tell the truth and it will be that much easier on you," will not exclude the confession. State v. Anderson, 96 Mo. 248; State v. Ball, 262 S.W. 1045. Appellant's reply, "I am going to tell the truth and nothing but the truth," shows that the statements were made by appellant of his own volition. Therefore, they were properly received. State v. Johnson, 316 Mo. 93. And, from all the evidence in this case, touching the subject-matter of appellant's confession, it cannot be perceived that the statement made to appellant, "Now, Bob, you tell the truth and it will be that much easier on you," had any influence on him. Hawkins v. State, 7 Mo. 190; State v. Patterson, 73 Mo. 707; State v. Young, 314 Mo. 629. (g) Aside from the confession, there are facts and circumstances pointing to the guilt of appellant which would require the court to submit the case to the jury. State v. Anderson, 96 Mo. 250. (h) This assignment, may be disregarded, as it is not before the court for review. Objection on behalf of the defendant came too late to warrant consideration. And there was no motion to strike out. Witness, Otto Scott, testified to the confession without objection until after the testimony was given. Witness, Earl Day, the next witness offered as to the confession, was interrupted while testifying with this objection: "We object to the introduction of any further statements as to what occurred in that conversation for the reason that the evidence shows that it was given in obedience to a question propounded by one in authority. Witness Ray Huss, testified to the details concerning the confession, without objection. The objection stated no valid reason why the evidence was inadmissible. State v. Todd, 225 S.W. 910; State v. Jackson, 194 S.W. 1078; State v. Smith, 190 S.W. 288; State v. Townsend, 289 S.W. 571; State v. Holmes, 316 Mo. 127; State v. Farris, 6 S.W.2d 906. (3) The court did not commit reversible error in refusing to instruct on an offense of a lesser degree than the one charged. There is no testimony tending to show that a larceny of domestic fowls was committed elsewhere than from the messuage of another, nor from the premises upon which the dwelling house of another was situated; nor at a time other than in the nighttime. Sec. 4066, R.S. 1929; State v. Patterson, 98 Mo. 288; State v. Wagner, 312 Mo. 132; State v. Hall, 7 S.W.2d 1004; State v. Scott, 301 Mo. 414; State v. Dougherty, 302 Mo. 643; State v. Hefton, 213 S.W. 443. (4) The court did not commit reversible error in giving instruction on the subject-matter of defendant's extra-judicial statements. (a) The question, whether or not said statements were "voluntary" need not be embodied in the instruction. State v. Simenson, 263 Mo. 267; State v. Howell, 117 Mo. 323; State v. Williams, 309 Mo. 186; State v. Wilson, 223 Mo. 192; State v. Nibarger, 255 Mo. 299. (b) The statement "what you find from the evidence, if anything, that the defendant said against himself, the law presumes to be true," is not such a comment on the evidence as to constitute reversible error. State v. Hamilton, 304 Mo. 30.
Appeal by defendant Robert McGuire from the judgment of the Circuit Court of Texas County, sentencing him to two and a half years' imprisonment in the penitentiary upon conviction of larceny of chickens in the nighttime.
Independently of a verbal admission or confession of defendant, the State's evidence tended to show the following: Trav Johnson, owner of the stolen chickens, and the defendant lived in the country near each other (defendant's evidence indicates a quarter or half a mile apart). On Friday morning, August 18, 1929, Johnson and his family went to a reunion, returning to their home Saturday night, August 19, about midnight. A week or so previously Johnson and his wife had counted their chickens, finding 114. They counted them on Sunday, August 20, and discovered that about fourteen were missing. On August 22 they found and identified eight of the missing chickens in the possession of Delbert Nelson, a merchant at the town of Twin Hickory, some miles distant. Johnson took those chickens home where "they went right to roost with the other chickens." Nelson had purchased said eight chickens from defendant McGuire on Saturday morning, August 19. Johnson's chickens, including these eight had all been raised by him on his farm and roosted in a brooder house not over ten steps from his dwelling and inside the yard which was enclosed, the dwelling house and brooder or hen house being within the same enclosure.
Defendant was arrested on charge of having stolen the chickens a day or so after Johnson missed them, and before the latter had discovered and identified them at Nelson's store. He was taken before Ray Huss, a justice of the peace, where, in answer to questions of Huss, be admitted that he had stolen the chickens, stating that he had taken them "Friday night" between eight and ten o'clock and had sold them at Twin Hickory the next morning. He said he thought there were seven, but there might have been eight. When arrested defendant had denied having stolen the chickens. The value of the eight chickens was about four dollars.
Defendant did not testify, but called his wife and another witness who testified that defendant was at his home constantly from about four P.M. Friday until Saturday morning. His wife further testified that he did not bring home the chickens in question or any chickens.
I. Appellant contends that the corpus delicti was not sufficiently proved, there being no proof aside from his alleged confession that the chickens were stolen in the nighttime; that the time, i.e., nighttime, is an essential element of the crime charged and "the naked confession of the Corpus Delicti: defendant is not sufficient to establish the In Nighttime. commission of a crime in toto or any essential element thereof."
It is true that "confessions of a crime not made in open court or before a committing magistrate and without proof aliunde. that a crime has been committed, will not sustain a conviction." [State v. Mullinix, 301 Mo. 385, 391, 257 S.W. 121, and cases cited.] But, as further stated in the Mullinix case in that connection, full proof of the body of the crime, independent of the confession, is not required "but on the contrary, what may seem to be slight corroborating facts have been held sufficient." [Citing cases.] The rule that full proof of the corpus delicti, independent of the confession, is not required seems well established, not only in this but in other jurisdictions. It is thus stated, with citation of numerous cases from this and other states, in State v. Cantrell (Mo.), 6 S.W.2d 839, 841 quoting from State v. Skibiski, 245 Mo. 459, 463, 150 S.W. 1038:
"The rule in this State has long been that full proof of the corpus delicti, independent of the confession, is not required. If there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case."
The Cantrell case was a prosecution for larceny of chickens in the nighttime, and as to proof that the larceny was committed in the nighttime presented a situation quite similar to that in the instant case. In other respects the State's case was rather less strong than this one. Applying the above quoted rule it was held that the proof of the corpus delicti was sufficient to make the confession admissible "and that it was for the jury to say whether the corroborating facts and the confessions, considered together, excluded from their minds all reasonable doubt of appellant's guilt, considering also his denial of the charge, his repudiation of the confession, and the evidence in his behalf tending to show an alibi."
In this case there was ample evidence without the confession to authorize a finding that the chickens had been stolen and that defendant was in possession of and sold them to Nelson very shortly thereafter. The Johnsons had not been away from home since last counting their chickens prior to August 18 until they left for the reunion. It is not likely the theft occurred in the daytime while they were at home. Since defendant marketed the chickens it may be inferred that he stole them for that purpose and would naturally dispose of them as soon as possible, especially as he lived near the owner's home. He sold them to Nelson at Twin Hickory on Saturday, which fact corroborates part of his statement. He said, too, that he took them from Trav Johnson and he thought there were seven, but there might have been eight. Nelson testified he bought eight from defendant, and it was shown that those eight were Johnson's chickens. Defendant's wife testified that when defendant came home about four P.M. Friday he brought no chickens. If he had stolen them earlier in the day would he not likely have disposed of them during that day?
If the charge were simple larceny it is conceded there was ample proof of the corpus delicti without the confession. Stealing chickens in the nighttime is larceny. The time at which the offense is committed affects the grade of the offense and the punishment therefor, but we are not prepared to say that it is such an ingredient of the offense as that there must be proof, independent of a confession, tending to show the nighttime feature, on the theory that it is part of the corpus delicti, before the confession can be considered.
In State v. Flowers, 311 Mo. 510, 278 S.W. 1040, the charge was larceny from a dwelling house. As we understand the brief statement in the opinion of the evidence in the case the only proof that the property was stolen from a dwelling house was a statement or confession proved to have been made by the defendant. There was evidence, as in this case of the defendant's possession of the stolen property recently after its theft. It was held that the corpus delicti was sufficiently shown.
However, if it be conceded that some corroborating circumstances must be shown, we think, as was held in the Cantrell case, that applying the rule there stated there were in this case, as in that, enough corroborating circumstances shown to admit the confession and to authorize its consideration by the jury together with all other facts in evidence; and that so considered the evidence is sufficient to support the verdict.
II. In his brief here appellant charges error in the admission of the evidence of his confession on the ground that it was made in response to an implied promise of mitigation of punishment, and therefore not voluntary. The facts relative to Confession: the admission of that evidence are: Otto Scott, who Voluntary. was with constable Earl Day when the latter arrested defendant and took him before Ray Huss, justice of the peace, testified for the State, without objection, that defendant first said he had not taken the chickens; that Huss said "All we want is the truth and nothing but the truth." whereupon defendant said he would tell the truth and proceeded to state that he got the chickens from Tray Johnson between eight and ten o'clock at night and sold them at Twin Hickory. At that point defendant's counsel asked to interrogate the witness, and developed that Huss was the justice who had issued the warrant and before whom the case was pending and that according to the witness, when Huss said all he wanted was the truth he also said to defendant that it might make it easier on him if he would tell the truth and nothing but the truth. Defendant's counsel then stated: "We object to that as being an improper method of obtaining the confession." The objection was overruled, but the testimony had already been given and there was no motion to strike it out.
Earl Day was called and after some preliminary questions was asked to state the conversation that occurred at that time, whereupon defendant objected "to the introduction of any further statements as to what occurred in that conversation for the reason that the evidence shows that it was given in obedience to a question propounded by one in authority." The objection was overruled. Day testified that defendant said he got the eight chickens from Tray Johnson between eight and ten o'clock Friday night and sold them at Twin Hickory the following day Saturday.
Huss was called and testified without objection to substantially the same statements of defendant, his testimony differing in this respect, viz., he quoted defendant as saving he sold the chickens Saturday morning, gave defendant's statements more in detail, giving questions and answers, and testified that it was Scott, not he who said to defendant that it would be easier on him if he told the truth. There was no motion to strike out any of the foregoing testimony.
It will be noted that the objection made by defendant in the trial court was upon the ground that the statement of defendant was in "obedience (response?) to a question propounded by one in authority." There was no objection upon the ground now urged, that it was made in the hope, induced by what had been said to him, that he might be more leniently dealt with if he confessed. The objection was not sustainable upon the ground stated, and the trial court cannot therefore be charged with error in overruling it. ". . . It does not matter that the confession was elicited through questions of the officer or person in authority, and that such questions assumed the guilt of the defendant." [State v. Hart, 292 Mo. 74, 89, 237 S.W. 473 and cases cited.] Neither is the confession rendered inadmissible because the defendant was under arrest (State v. Hart, supra), nor merely because he was exhorted or adjured to speak the truth, no threats or promises being made. [State v. Johnson, 316 Mo. 86, 92, 289 S.W. 847.]
If defendant had made timely objection at the trial upon the ground he now urges, or made any showing that his confession was induced by the statement made by or in the presence of the officers having him in charge, we might have a different question with which to deal. [State v. Hart, supra; State v. Keller, 263 Mo. 539, 557-8, 174 S.W. 67.] He did neither. His objection was not on that ground, and he did not offer to testify himself to the court upon that issue when he challenged the State's offer to prove the confession, or to the jury, nor did he attempt in any way to show that his confession had not been voluntary.
"It is well settled that objections must be specific and call the attention of the court directly to the ground upon which the objection is made, and it is also well settled that appellant will not be permitted to broaden the scope of his objection on appeal beyond that made in the trial court." [State v. Witherspoon, 231 Mo. 706, 720, 133 S.W. 323.] See also State v. Harlan (Mo.), 240 S.W. 197, 201; State v. Vanarsdall (Mo.), 273 S.W. 733, 735.
For the reasons indicated we deem it unnecessary to decide whether or not under the circumstances shown the statement to defendant that it might make it easier on him to tell the truth, nothing else appearing, would be sufficient to exclude the confession had objection been made on the ground now suggested.
III. Defendant recalled Huss and sought to ask him if he had informed defendant that he was entitled to consult counsel and that what he said might be used against him. The State's objections to the questions were sustained. No offer of proof was made. That ruling could not have prejudiced defendant. If defendant was not given the information suggested by the questions that fact would not have made the confession inadmissible. [State v. Johnson, supra.] If defendant sought to prove that he had not been so informed in order that the jury might consider that fact it was clearly apparent from Huss's testimony that he had not so informed defendant.
IV. Complaint is made that the court should have submitted petit larceny. Defendant asked and the court refused an instruction to the effect that if the jury found that defendant stole the chickens, but had a reasonable doubt as to whether the larceny had been committed in the nighttime or Petit Larceny. the daytime, or as to whether it was committed "in or out" of the messuage of Johnson, defendant could be convicted only of petit larceny.
In a case under this statute, Section 4066, Revised Statutes 1929, if the evidence warrants, i.e., if the larceny is proved, but the value of the property stolen is under thirty dollars, and under the evidence there could be a finding that the larceny was not committed in the nighttime or was not from the messuage of the owner, we think an instruction authorizing a verdict of petit larceny should be given. An indictment charging an offense under this statute includes all the elements of petit larceny. But we do not think the refusal of the court to submit petit larceny prejudiced the defendant, because: If the larceny was committed in the nighttime it could not have been found under the evidence to have been committed elsewhere than from the messuage of Mr. Johnson. The jury was required to find, in order to convict, that the larceny was from the messuage and in the nighttime. Appellant's real contention on this point is that it was not proved that the larceny was committed in the nighttime. In his brief here he states: "It was the theory of the defense that the chickens were stolen in the daytime, if at all by this defendant."
At defendant's request the court instructed the jury that although they should find that defendant stole the chickens, "yet under the law and evidence in this case" they could not convict defendant of any crime whatever unless satisfied from the evidence beyond a reasonable doubt that the larceny was committed in the nighttime. That instruction was more favorable to defendant than the one refused, since it authorized acquittal instead of conviction of petit larceny if the jury had a reasonable doubt that the larceny was committed in the nighttime. If it be contended that the jury might have convicted of petit larceny and assessed a lower punishment if that offense had been submitted, a sufficient answer is that under the statute in question, though the conviction be for stealing from the messuage in the nighttime as charged, the punishment may be as low as it could be for petit larceny. So from whatever angle the matter be viewed the court's refusal to submit petit larceny was not prejudicial to the defendant.
V. Appellant alleges error in the giving of instruction No. 3 relative to the effect of verbal statements, Verbal Statements. if any, found to have been made by defendants. It is substantially a copy of Instruction No. 16 given and approved in State v. Darrah, 152 Mo. 522, 530, 541, 54 S.W. 226, with the additional direction that such verbal statement should be considered by the jury with caution on account of the liability of witnesses to forget or misunderstand what was really said or intended. The additional cautionary direction was favorable to the defendant. The balance of the instruction in substantially the same form has been many times approved by this court. [See State v. Nibarger, 255 Mo. 289, 298-9, 164 S.W. 453.] While it is usually unnecessary and has been criticized as a near approach to an unauthorized comment on the evidence (see State v. Nibarger, supra) we have never held it reversible error. The further objection that it did not require that the jury should find the statements if any, to have been made voluntarily is answered by State v. Simenson, 263 Mo. 264, 268, 172 S.W. 601, holding that it is unnecessary to incorporate that proposition in the instruction under discussion under circumstances such as shown here. [See also State v. Nibarger, supra; State v. Darrah, supra; State v. Wilson, 223 Mo. 173, 192, 122 S.W. 671.] The point is ruled against appellant.
VI. In presenting their case in chief counsel for the State neglected to introduce any direct or positive evidence as to where Johnson's chickens roosted at night. There were some circumstances shown from which it might be Reopening Case. inferred that they roosted in the brooder house, but the evidence on that point was far from satisfactory. After both sides had rested and a demurrer had been presented the court permitted the case to be reopened and proof on that point to be offered. Johnson was then recalled and asked: "Where do your chickens roost of a night?" To which he replied that they roosted in the brooder house, and proceeded to describe, in answer to questions, its location, structure, etc.
There is some contention that the court erred in permitting the reopening of the case, but such matters rest largely in the discretion of the court, and we do not perceive that defendant could have been prejudiced by such reopening of the case. It does not appear that any witnesses had been excused and there was no suggestion by defendant of any fact or circumstance from which it might appear that he might be injured more than if that evidence had been offered at the proper time.
The main insistence, however, is that the questions put to Johnson when he was recalled were in the present tense and that his testimony as to where the chickens roosted had reference to the time of the trial and not to the time of the larceny, some six months previous. Counsel for the State might well have exercised more care in the presentation of their case, thereby saving this court time and labor in passing upon such contentions as this. But we are not authorized to reverse for technical errors that do not affect a defendant's substantial rights on the merits. We are confident the jury and defendant as well perfectly understood from the whole examination that the witness was describing conditions as they existed at the time of the larceny. Defendant, naturally enough, perhaps, did not risk cross-examining the witness and thereby getting a more definite statement of the time to which he referred.
VII. Error is charged in that the court did not define "messuage" and "nighttime" as used in the instructions. The instruction submitting the case did not use the term "messuage" alone. It required the jury to find that the chickens Messuage: were stolen "from the messuage of the said Trav Nighttime. Johnson and from the premises upon which the dwelling house of the said Trav Johnson is situated." (Italics ours.) The jury having been directed thus we think no further definition of "messuage" was necessary.
Nor do we think a definition of "nighttime" was necessary in this case. Defendant's proved admission was that he had taken the chickens Friday night between eight and ten o'clock. Obviously he meant night, not in the evening and before night fall. The evidence was not such as to require a definition of the term.
VIII. The contention that the court erred in refusing defendant's requested instruction on Error: circumstantial evidence is not preserved in the Preservation. motion for new trial and is not before us for review.
We have considered appellant's contention of error in respect to the identification of his chickens by Johnson at Nelson's store and his claim that improper cross-examination of his wife was permitted and we are satisfied that no error was committed in either respect.
We have examined the record and carefully considered appellant's numerous assignments of error and find no prejudicial error. We think appellant had a fair trial and that his guilt was clearly established.
The judgment of the circuit court is affirmed. Westhues and Fitzsimmons, CC., concur.
The foregoing opinion by COOLEY, C., is adopted as the opinion of the court. All of the judges concur.