State v. Weldon

¶1The indictment in this case charged the defendant with having committed petit larceny after having been duly discharged from imprisonment under a previous conviction for a similar offense. The statute provides that if any person convicted of any offense punishable by imprisonment in the penitentiary, or of petit larceny, or of any attempt to commit an offense which if perpetrated would be punishable by imprisonment in the penitentiary, shall be discharged, either upon pardon or compliance with the sentence, and shall subsequently be convicted of petit larceny, committed after such pardon or discharge, he shall be punished by imprisonment in the penitentiary not exceeding five years. Any offense punishable by imprisonment in the penitentiary is by our statute declared to be a felony. Wag. Stat., p. 516, § 33; State v. Green, 66 Mo, 647. Petit larceny committed under the circumstances charged in this indictment is, therefore, a felony. So also is petit larceny a felony when committed in a dwelling house, or in any boat or vessel, or by stealing from the person in the night time. Wag. Stat., p. 457, § 28. It is not the designation of any offfense which, with us, consti*575tutes it a felony, or a misdemeanor, but the punishment which" is affixed to such offense. While it is a seeming contradiction in terms to denominate petit larceny as a felony, yet this apparent incongruity will be found to result rather from an association of ideas, than from any inherent inconsistency. It has been repeatedly decided by this court that all felonies must be alleged to have been feloniously committed, otherwise the indictment will be bad. State v. Deffenbacher, 51 Mo. 26. The indictment in this ease fails to charge that the larceny was feloniously committed, and the judgment of the circuit court must, therefore, be reversed and the cause remanded.