Smith v. State

• Decision Date: 31 March 1851
• Parties: SMITH ET AL. v. THE STATE OF MISSOURI.
• Court: Missouri Supreme Court

14 Mo. 147

SMITH ET AL.

v.THE STATE OF MISSOURI.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

Smith and others were indicted for a riot under the 6th section, 7th article of the act concerning Crimes and Punishments, Rev. Code, p. 394. The defendants were arrested and brought into court, and plead not guilty, and on the 29th August, 1849, went to trial, when Levi, James and John Smith, John Ball, Silas W. Ganiot and John Pratt, were found guilty.

Walter Adams was sworn as a witness for the State, who testified, among other things, in substance, that he was employed by Wm. C. Martin, to split rails for him, and do other work for him, and that he, with others, had built the house for Martin, that was torn down by defendants. That on the evening before the riot, Levi Smith, John Smith and John Ball come to the building and wanted witness and the other men at work in the house to assist them in pulling the house down, which witness refused to do. One of the troop said it should be done. Smith said they had come to tear down the house, but they could not do it unless there were more of them. Levi Smith returned next day with nine others, and defendants pulled down the house, and then set fire to the ruins, and they were consumed. Witness had then been working some two or three weeks in Wm. C. Martin's employ, and with others had built the house for Mr. Martin and were then occupying the house on the land of Martin. That prior to the commencement of pulling down the house, Smith and his party ordered him (witness), and the other inmates, to leave--that they did not resist the pulling down of the house, because there was no use to resist. On the cross-examination, the defendants counsel asked the witness the following question: When Levi Smith told you he came to pull down the house, and told you to leave it, did he at that time tell you that the land was his; that he had purchased it from Wm. C. Martin? This question was objected to by the State, and the objection sustained, to which defendants excepted.

Jalin Ragen was then sworn for the State, who stated, among other things, that when he was ordered to leave the house--he did so for fear of being hurt by the falling timbers.

John Carter was then sworn as a witness for the State, who testified substantially as above. On his cross-examination he was asked the following question by defendants: “Who was with you at work when he (Smith), forbade the cutting of rails?” Objected to and objection sustained, to which exception was taken. Defendants exhibited a transcript of a judgment sworn to before V. C. Music, a justice of the peace in favor of Levi Smith against John Carter and others, in trespass, for cutting timber on plaintiff's land, in St. Louis county, St. Ferdinand town, and then asked the following question: “Are you the same John Carter, who, with others, was sued by Levi Smith, before Justice McClure for trespassing upon his land?” Objected to--objection sustained-- excepted to. Defendants' counsel then asked the following question: “Is the land, for trespassing on which you were sued, the same piece of land on which you were building the log house which defendants pulled down?” Objected to-- sustained--exception taken. The defendants' counsel then asked the following question: “Were any other persons sued, with you, by Levi Smith, before Justice Music?” Objected to--sustained--exceptions taken.

Wm. C. Martin was then introduced as a witness for the State, who swore, among other things, in substance, that he bought the tract of land on which the house in question was situated, of the heirs of Frederick Bates; upon the reputation of Levi Smith, insisting that the title of Bates' heirs was good. That Smith afterwards bought of him only such title as he had acquired of the heirs of Bates. Afterwards, he (Martin), acquired the legal title of Hempstead. That after he had acquired the latter title of H., he had offered to compromise with Smith and give him back the purchase-money with legal interest thereon. That he was in actual possession of the land at the time the same was demol hed, and had been in possession for about two weeks. Defendants' counsel asked the following question: “What did you pay Hempstead for his title?” Objected to-- sustained--exceptions taken. Here State closed.

Defendants then offered in evidence the transcript of suit by Smith v. Carter et al., for cutting timber on land in question. Objected to--sustained-- exceptions taken. Defendants then offered in evidence a deed made by Wm. C. Martin and wife to Levi Smith for the land in question, which was the same deed alluded to in the testimony of Martin. Objected to--overruled-- exceptions taken. After introducing some witnesses, who testified as to the character of defendants for peace, defendants closed.

Defendants asked the following instructions: 1st. If the jury believe that Martin, by the deed which he gave to Smith, and which is in evidence, conveyed all the title to said land which said Martin then had, this is a fee simple conveyance, although it be a mere quit-claim. 2nd. If the jury believe that Martin conveyed, by a quit-claim deed, the land in question to Smith, and that Smith thereafter entered on the land, and cut timber thereon, or exercised acts of ownership thereon, this was an actual and lawful possession of the whole of said piece of land by Smith, and any entrance thereon afterwards by Martin, without Smith's consent, and without the authority of law, made Martin a trespasser, and Smith was justified in using sufficient and necessary force in putting Martin off such land. 4th. Cutting timber on land, erecting buildings thereon, without lawful right, such as title thereto, or the consent of the owner, does not give the person doing such acts the lawful possession to such land. 5th. A person, not the owner of land, erecting a house thereon, does it of his own wrong, and the house belongs to the owner of the land, unless there be some agreement to the contrary between him and the owner, or unless as the tenant of the owner he erects such house for the purposes of trade. 6th. Before the jury can convict, they must be satisfied that the defendants destroyed the house in question in a forcible, violent and turbulent manner. The court refused these instructions, to which the defendants excepted.

The court then gave the following instructions: 1st. Every tumultuous disturbance of the public peace, by three or more assembled together, by their own authority, with the intent mutually to assist one another against any who shall oppose them in the execution of some private object, and afterwards executing the same in a violent and turbulent manner, to the terror of the people, whether the act is lawful or unlawful, is a riot. If, therefore, you find from the evidence that the defendants, or any three of them, in the county of St. Louis, and within one year before the finding of this indictment, did assemble together at the place described in the indictment, with the intent mutually to assist one another to burn or destroy a house, as mentioned in the indictment, in the course of construction by Wm. Martin or his agents, and that the said house was in the possession of said Martin or his agents, and that the defendants did so burn or destroy, to the terror of the people then and there being, in a violent and turbulent manner, you will find the defendants guilty of a misdemeanor, and assess their punishment by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment. 2nd. Much has been said upon the subject of legal possession, actual possession and constructive possession of the land upon which the house stood, mentioned in the indictment. If you find from the evidence that the workmen engaged in the construction or finishing of the house mentioned in the indictment were the workmen employed by Wm. C. Martin, and that said Martin did, either by himself or his workmen, cut timber from the land for the purpose of building said house, and that the workmen of said Martin were in said house and in the employ of said Martin at the time the defendants came there and committed the depredations alleged in the indictment, then, in law, the said Martin was in sufficient possession, and had sufficient property in said house, for the purpose of this indictment. 3rd. The business transaction between the said Martin and the elder Smith can only be considered by the jury in passing the measure of punishment, and is a proper matter of consideration for that purpose--to the giving of which defendants excepted.

Defendants were found guilty, and moved for a new trial for the following reasons: 1. Because the verdict is against evidence, against law and evidence, and against the weight of evidence. 2. The court erred in refusing testimony offered by the defendants--in excluding testimony to which defendants were entitled on a cross-examination of the witnesses examined by the State. 3. The court erred in instructions given by it to the jury. 4. The court erred in refusing instructions asked for by defen...