Opinion
No. 31486.
December 3, 1934.
1. CRIMINAL LAW.
In prosecution for grand larceny, motion for new trial on ground that victim's wife, who could not be found at time of trial, was then present in court and ready and willing to exonerate accused, held properly overruled, where no testimony was offered on motion, and affidavit of wife setting forth what her testimony would be was not attached to motion.
2. CRIMINAL LAW.
Movant had burden of sustaining motion for new trial.
3. LARCENY.
In prosecution for grand larceny of articles which accused alleged to have been given them by wife of victim so that they could assist her in eloping, whether it was crime for wife to steal from husband held immaterial, since accused if they assisted in theft were principals and not accessories, regardless of whether other person was responsible (Code 1930, sec. 769).
APPEAL from the Circuit Court of Walthall County.
Breed O. Mounger, of Tylertown, for appellants.
Persons who merely assist a woman in carrying away her husband's goods are not guilty of larceny. The wife, the principal in the act, not guilty of crime, there can be no accessory.
Thomas v. Thomas, 51 Ill. 162; Lamphier v. State, 70 Ind. 317; State v. Banks, 48 Ind. 197; 36 C.J., par. 159 (3), p. 783; State of Ohio v. Phillips, 85 Ohio State, 317, 97 N.E. 976; 40 L.R.A. (N.S.) 142.
The trial court committed error in refusing to allow an opportunity to establish by the wife of the prosecuting witness that they were not guilty of wrongful or felonious intent in the carrying away of the goods in question, in that the actual taking of the goods was committed by the wife of the person from whom they were stolen. Upon the hearing of this motion the appellants showed that they had exhausted every possible means by process to secure the wife of Fred Quin before the trial of the case and that the process was returned "not found;" that the wife of Fred Quin was then and there present in court and ready and willing to exonerate the appellants by testifying that she took the property from her husband and delivered it to them without conspiracy or guilty knowledge or intent on their part.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The question of whether a wife may steal from her husband seems never to have been passed on by this court. At the common law the wife could not steal from her husband, nor the husband from the wife, or rather, to be more precise a wife could not be prosecuted for a theft from her husband. The authorities nowadays seem to be about equally divided on the proposition, in view of the legislative acts, which gave to the wife the right to own and control her separate property. State v. Koontz, 124 Kan. 216, 257 P. 944, 55 A.L.R. 555, goes into the question and reaches the conclusion that the wife can be prosecuted for the larceny of her husband's property.
It appears to me in view of the statute which gives a married woman the right to acquire, hold and dispose of property in her own right, such property being exclusively her own and the husband has absolutely no control over it; that a husband would be subject to the criminal laws of the state, so far as the taking of his wife's property is concerned. And, likewise, it seems to me that there is no good reason for holding, in this state, that a wife is not guilty of larceny when she surreptitiously takes the separate property of her husband with the intent to permanently deprive him of it.
Section 1940, Code of 1930; Section 94, Constitution.
The appellants were convicted of grand larceny by the circuit court of Walthall county, and sentenced to serve one and two years in the state penitentiary, respectively, from which this appeal is prosecuted. The theft occurred at night from the home of Fred Quin. The appellants were at Fred Quin's early in the evening, took supper there, and shortly after supper left the house. The following morning Quin found his back door open, his pants and shirt on the steps, and that forty-one dollars and thirty cents and a watch valued at from ten dollars to fifteen dollars had been taken. Officers were communicated with and they instituted an investigation. They found tracks leading from Quin's home through a pasture and field to the road, and thence to the house where the appellants lived. The officers noticed a peculiarity in one of the tracks, and at the home of the appellants they found shoes which corresponded precisely with the peculiar tracks. They discussed the matter with the appellants, who finally admitted that they took the money and watch. According to the claim of one of the appellants, Fred Quin had given them the money which they alleged was due them, and that Allie Quin, wife of Fred Quin, was planning to elope with another man and had given them the watch to give to this man.
The sheriff, who had the appellants in custody, testified that they made a straight confession to him, stating that they were at Quin's home; that one of them left the back door unlatched; that they went down the road, and when they thought Quin was asleep, they returned to his house, entered through the unlatched door, and took the money.
The appellants took the stand and testified that Allie Quin, the wife of Fred Quin, gave them the money and watch and instructed them to keep the money for her, and to give the watch to the man named in the record, and that she intended to elope with this man, and that they (appellants) did not intend to steal the watch and money.
On the trial of this case, both the state and the appellants requested instructions; that for the state embodying the theory that for a wife to steal from her husband would be larceny, and that for the appellants being to the effect that if the jury believed that the wife of Fred Quin gave the appellants the watch and money, they would not be guilty of the crime. The court refused both instructions.
After the conviction, the appellants filed a motion for a new trial, setting forth that they were guilty of no criminal intent in the offense charged, because the property of which they were accused of stealing was given to them by Allie Quin, the wife of Fred Quin, and that they did not know that the property was other than the property of the person from whom they received it; that process had been issued for Allie Quin, and returned "not found." The motion also alleged that Allie Quin was then present in court, ready and willing to exonerate them.
It does not appear from the record that any testimony was offered on this motion, nor was the affidavit of Allie Quin attached to the motion, setting forth what her testimony would be should the motion be sustained. This is required. Lamar v. State, 63 Miss. 265; Osborne v. State, 146 Miss. 718, 111 So. 834. The record shows the notation "overruled" on the motion, but no order appears on the minutes overruling it, nor is there any testimony thereon. The motion was at issue and it devolved upon the movant to sustain it.
The appellants contend that it is not a crime, under the law, for a wife to steal from her husband, and if their testimony was accepted, the appellants would not be guilty of the crime.
It is not necessary, however, to decide whether it is a crime for a wife to steal from her husband, for, if the appellants assisted in the theft of the money from Fred Quin, they would become principals and not accessories under section 769, Code 1930, which provides that every person who shall be an accessory to any felony before the fact shall be considered a principal and be punished as such, whether the principal has been previously convicted or not. Whatever may be the result of a wife taking the personal property of her husband, the appellants here are not entitled to that protection, because, under the testimony, they participated in the theft and are, therefore, principals. It would be a crime, and that crime would be larceny, for them to assist another person in the theft of property, although such other person might not be responsible for same, as in the case of children under seven years of age, insane persons, and, perhaps, others.
We find no reversible error, and the judgment will be affirmed.
Affirmed.