The State v. Preston, Appellant

Supreme Court of Missouri1883-04

77 Mo. 294

Summary · law.co

Holding. The court affirmed the conviction for grand larceny, holding that the evidence, particularly the testimony of multiple witnesses regarding the hogs' value, adequately supported the jury's verdict and that Preston's remaining appellate arguments either lacked proper preservation or lacked merit.

Preston was convicted of grand larceny for stealing two hogs valued at $37 and sentenced to two years in prison. He appealed on three grounds: that the verdict contradicted the evidence, that the court misdirected the jury on the law, and that the prosecutor made improper remarks. The evidence clearly established that Preston took the hogs. Regarding valuation, the owner and three other witnesses testified the hogs were worth $32–$33, while the buyer and his associate testified they were worth approximately $25. The trial court instructed the jury that grand larceny applied if the hogs were worth $30 or more, and petit larceny if less. Given that multiple credible witnesses testified to a value exceeding $30 and the jury had the opportunity to assess their credibility, the verdict was not so unreasonable as to suggest passion or prejudice.

Preston's challenge to the jury instructions could not be considered because he failed to raise this objection in his motion for new trial. The prosecutor's statement that Preston had not attempted to explain his possession of the property was factually accurate based on the trial record and did not improperly reference Preston's right to testify.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether evidence of theft and valuation supported a grand larceny conviction
Whether conflicting evidence on property value rendered the verdict unreasonable
Procedural preservation of jury instruction objections
Permissibility of prosecutor's statement regarding defendant's failure to explain possession

Procedural posture

Preston appealed his grand larceny conviction and two-year penitentiary sentence from Johnson County criminal court to the appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Norton, J.

Defendant was tried in the criminal court of Johnson county upon an indictment charging him with grand larceny in stealing two hogs of the value of $37. He was found guilty and his punishment assessed at two years’ imprisonment in the penitentiary, from which judgment he has appealed to this court, and the chief points relied upon by counsel for a reversal of the judgment are, that the verdict is against the evidence, that the court misdirected the jury as to the law, and that the circuit attorney was allowed to make improper remarks in his argument to the jury.

That defendant stole the hogs in question, we think is clearly established by the evidence, but it is insisted by counsel that the weight of evidence showed tbeipa to be under the value of $30, and that, therefore, the verdict of the jury finding defendant guilty of grand larceny is against the evidence. The evidence as to the value of the hogs was conflicting. James E. Rankin, from whose feed-lot the hogs were taken, and who was a farmer and had been buying and selling hogs for thirty years, testified that the hogs were worth $32 or $33. His evidence in this respect was corroborated by that of Robert E. Rankin, "William Hunt and Simmerman. On the other hand, witness Clark, who bought the hogs of defendant, testified that he weighed them, and at the market price théy were worth $24.99, and that he paid defendant that sum for them. His evidence was corroborated by that of Hale, a member of the firm for which witness Clark bought the hogs. On this state of the evidence the jury were directed that if they found defendant stole the hogs, and that they were of the value of $30 or more, they would find him guilty of grand larceny, and if they found them to be of less value than $30, they would find him guilty of petit larceny. The question as to the value of the hogs was thus fairly submitted to the jury, and the evidence of the hogs being of less value than $30 does not so preponderate as to justify us in saying that the jury, in arriving at the conclusion that they were worth $30 or more, were influenced by passion or prejudice, especially so, in view of tbe fact, that they had the witnesses before them, three or four of whom testified that the hogs were worth over $30. State v. Cook, 58 Mo. 546; State v. Mustek, 71 Mo. 401; State v. Zorn, 71 Mo. 415.

It is also insisted that the court erred in giving instructions. This objection cannot be considered by us for the reason, that it is not alleged in the motion for new trial, that the court misdirected the jury. State v. Degonia, 69 Mo. 490; State ex rel. Rucker v. Rucker, 59 Mo. 17; Matlock v. Williams, 59 Mo. 105.

It is also urged that the prosecuting attorney was permitted to say in his argument to the jury “that no attempt had been made by defendant to explain his possession of the property.” This statement is borne out by the record, and is not regarded by us as referring to the fact that defendant might have been sworn as a witness if he had so chosen, but to the case as made by the evidence.

Judgment affirmed,

in which all concur.