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75 Mo. 317

State v. Brown

Supreme Court of Missouri

Decided April 15, 1882

Supreme Court of Missouri · decided 1882-04-15

— Hon. M. G. McGregor, Judge. This was an indictment for stealing from the dwelling house of one Gather property alleged to be of the value of $15. The second instruction given on the part of the State was to the effect that if the jury believed that defendant took, stole and carried away of the property mentioned in the indictment of any value whatever, in the dwelling of said Cather, and belonging to said Cather, they should find the defendant guilty of grand larceny.

Key passage — most relied on by later courts

““It is true that section 1909 oí the General Statutes provides that the court, ‘ with the consent oí the prosecuting attorney and the defendant, * * * may permit the jury to separate, * * * except in capital cases; ’ but that statute nowhere provides that the record shall recite the fact oí consent given. In the absence, then, of any objection appearing to the separation of the jury, the presumption will bo that the necessary consent was given. Such presumptions always attend the acts and doings of courts of general jurisdiction.””

quoted by 1 later decision, including Miller v. Chicago, M. & St. P. Ry. Co.

Relies on State v. Kelly · State v. Ramelsburg

Good law ✅— No negative treatment on recordhow we know

Aeeirmed · Decided 1882-04-15

How this case has been cited

Cited by 16 later decisions — most recently March 1958

15 state decisions

7018821890190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1I.

Sherwood, C. J.

¶2We will not reverse the judgment because the record does not show that defendant consented to the separation of the jury. It is true that section 1909 of the General Statutes, provides that the court, “ with the consent of the prosecuting attorney and the defendant … may permit the jury to separate, … except in capital cases.” But that statute nowhere provides that the record shall recite the fact of consent given. In the absence then, of any objection appearing to the separation of the jury, the presumption-will be that the necessary consent was given. Such presumptions always attend the acts and doings of courts of general jurisdiction. SincQ, then, the record is silent on the point, we will presume that the consent of the defendant was duly asked and obtained.

¶3II.

¶4There was no error in giving the second instruction *319asked on behalf of the State, if there was evidence offered to support the allegation of the indictment that the property was stolen from a dwelling house ; for in such cases, the larceny is grand, regardless of the value of the property, and is punishable by imprisonment in the penitentiary not exceeding seven years. R. S. 1879, § 1309; State v. Ramelsburg, 30 Mo. 26.

¶5As the evidence has not been preserved in the bill of exceptions, we shall assume that the court would not have given an instruction relating to larceny from a dwelling house, nor the jury have found defendant guilty as charged, unless upon sufficient evidence.

¶6III.

¶7' The fourth instruction, given at the instance of the State, in reference to the recent possession of stolen property being presumptive evidence of the possessor’s guilt, unless explained, etc., has always been the law of this State. State v. Kelly, 73 Mo. 608, and cases cited. No evidence having been preserved, and nothing to show that good character was established, the instruction was, doubtless, broad enough. We shall assume that it was, and that it conformed to the evidence.

¶8Finding no error in the record, we affirm the judgment.

All concur, except Hough and Henry, JJ., who dissent as to the third paragraph in reference to the recent possession of stolen property.
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