State v. Miller
| Decision Date | 23 May 1911 |
| Citation | 137 S.W. 887,234 Mo. 588 |
| Parties | THE STATE v. MOSES MILLER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Henry L. Bright, Judge.
Reversed and remanded.
R. M Sheppard and Clay & Davis for Appellant.
(1) There was no competent evidence in this case sufficient to support a verdict of guilty. One accused of a crime should not be convicted on a mere suspicion, or even a strong probability, of guilt, but the evidence should be clear and convincing, fully satisfying the minds and consciences of the jury; unless it is so, the accused should be acquitted. The presumption of innocence is not overcome by strong suspicion or conjecture; the law requires proof beyond a reasonable doubt. State v. Crabtree, 170 Mo. 642; State v Lawrence, 178 Mo. 350; State v. Johnson, 209 Mo. 346. Where the evidence is circumstantial the facts and circumstances must, in order to warrant a conviction, be established beyond a reasonable doubt, and when so established must point so strongly to the guilt of the defendant as to exclude any other reasonable hypothesis. State v. Hunsack, 189 Mo. 295; State v Moorey, 196 Mo. 43; State v. Francis, 199 Mo. 680. Where circumstances are relied upon, they must be such as to establish the defendant's guilt beyond a reasonable doubt by facts and circumstances which are consistent with each other and with the defendant's guilt, and inconsistent with any reasonable theory of his innocence. Therefore, a suspicion of guilt, or even a strong probability of guilt, is not sufficient to authorize a conviction. State v. Faulkner, 175 Mo. 546; State v. Scott, 177 Mo. 665; State v. Crabtree, 170 Mo. 642. (2) The court committed error in permitting the prosecuting attorney to present to the witness Joseph the instrument which purported to be the evidence of the witness before the grand jury for the purpose of refreshing the witness's memory and in refusing to let counsel for defendant cross-examine the witness as to whether he had any independent recollection as to what he saw defendant do, or whether his evidence was based entirely upon the instrument from which he refreshed his memory, and also in refusing to permit counsel for defendant to see the instrument from which witness was attempting to refresh his memory. Wigmore on Evidence, secs. 762, 764; Putnam v. United States, 162 U.S. 687; Maxwell v. Wilkinson, 113 U.S. 657; Walker v. State, 117 Ala. 42.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
(1) If there was evidence to take the case to the jury, then this court will not interfere, as the weight of the evidence was for the consideration of the jury. It is only in case of the absence of substantial evidence to sustain the verdict that this court will interfere, and in the case at bar there was substantial evidence of appellant's guilt. The jury so found and the trial court approved the verdict. State v. Mathews, 202 Mo. 148; State v. Tetrick, 199 Mo. 104; State v. McKenzie, 177 Mo. 717. (2) The evidence of Humes was competent for the purpose of showing appellant's connection with the room. The State was entitled to show any connection the appellant had with this room. State v. Marcks, 140 Mo. 656; State v. Goddard, 162 Mo. 198. (3) The prosecution undoubtedly had the right to refresh this witness's memory from the memoranda of his evidence taken before the grand jury, as the witness seemed to have failed in memory. 1 Greenleaf on Ev., section 436; Sandwell v. Sandwell, Comb. 445, Holt, 295; Nichol v. Webb, 8 Wheat, 326; Wood v. Cooper, 1 Car. & K. 645; Billingslea v. State, 85 Ala. 323. It is not the memorandum that is competent, it is the memorandum that may be used to refresh the witness's memory. Putnam v. United States, 162 U.S. 697; Hickory v. United States, 151 U.S. 303; Morrison v. Chapin, 97 Mass. 72; Ins. Co. v. Evans, 15 Md. 54.
At the April term, 1910, of the circuit court of Jasper county, appellant was convicted of the offense of setting up and keeping a gaming table and gambling device, commonly called a crap table, sentenced to imprisonment in the penitentiary for a term of two years, and appealed to this court. The prosecution was based on section 4750, Revised Statutes 1909. The facts are fully stated in the opinion.
I. Appellant first assigns as error the insufficiency of the evidence to sustain the verdict and the refusal of the court to give an instruction in the nature of a demurrer to the evidence. This contention calls for a review of the testimony upon which the jury found the defendant guilty.
That gambling was carried on openly and in flagrant violation of the law, at the time and place charged in the indictment and mentioned in the evidence, was clearly shown and, aside from the criminal agency of the defendant, every essential element of the offense charged was proven by undisputed evidence. The question that now demands our serious consideration is this: Was the testimony sufficient to warrant the jury in finding that the defendant set up and kept the gaming table, upon which the gambling was conducted as testified to by the witnesses?
It is provided by section 4761, Revised Statutes 1909, that: "Every person appearing or acting as master or mistress, or having the care, use or management, for the time, of any prohibited gaming table, bank or device, shall be deemed a keeper thereof; and every person who shall appear or act as master or mistress, or having the care, use or management of any house or building in which any gaming table, bank or device is set up or kept, or of any gaming house, brothel or bawdy house, shall be deemed the keeper thereof."
Did the testimony for the State bring the defendant within the charge in the indictment of setting up and keeping a gaming table, as defined in the statute upon which the prosecution was based, construed in connection with the foregoing section?
Four witnesses only testified on behalf of the State, namely, David Joseph, Frank Holburt, Guy Humes and W. C. Porter. Porter was a deputy sheriff and his testimony was limited to proof of the inability of the officers to obtain service on another witness for the State whose name was indorsed on the indictment. So the determination of the question in hand depends on the testimony of the three witnesses first named. Witness Humes was mayor of the city of Joplin and his testimony did not relate directly to the time referred to in the indictment and by the other witnesses. He testified that about the first of June, 1909, in company with members of the police force, he went to the place in which gambling had been carried on in March or April preceding, as testified to by Joseph and Holburt, for the purpose of making a raid; that they went into the saloon over which the gambling room was located, and demanded to go up stairs; that the defendant, who was in the saloon at the time, got the keys at the bar and took the mayor up stairs and into the gambling room; that they found the room furnished and fitted up with gambling tables and devices, but with no person therein. There was ice water in the water tank, and the spittoons had the appearance of having been lately used. The mayor said to the defendant, "You have been gambling up here," whereupon the latter laughed but made no reply.
This testimony was objected to by the defendant and its admission is now assigned as error. We think it was properly admitted upon the principle that the conduct and admissions of the accused, after the commission of the crime and tending to prove the charge, are always competent. It was at least a circumstance that was proper for the consideration of the jury. But when that is said it must be admitted that the testimony of this witness has very little probative force as tending to prove that the defendant, two months before, set up and kept a gaming table as charged in the indictment.
The testimony of the witness Holburt very satisfactorily proved every element of the offense except that it in no manner connected the defendant with the setting up or keeping of the crap table on which the game was being played. He saw the defendant in the room, but did not see him taking part in the management of the table or acting differently from others who were in the room. Therefore, so far as it was necessary to connect the defendant with the setting up and keeping of the gaming table that was shown to have been operated, the case stands practically on the testimony of the witness Joseph.
Leaving out of consideration the fact of the hostility of this witness to the State and the discredit unavoidably cast upon his character as a witness, we shall examine next his testimony upon the point under consideration. Testifying as to what occurred in the gambling room at the time of the offense charged, he was asked by the prosecuting attorney "Was the defendant there or was he not there?" The witness answered, "I don't remember." Several times the same question, in varying language, was propounded to the witness and each time the...
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