State v. Conway

• Citation: 145 S.W. 441,241 Mo. 271
• Parties: THE STATE v. HARRY CONWAY, Appellant
• Decision Date: 21 March 1912
• Court: United States State Supreme Court of Missouri

145 S.W. 441

241 Mo. 271

THE STATE v. HARRY CONWAY, Appellant

Supreme Court of Missouri, Second Division

March 21, 1912

Appeal from Greene Criminal Court. -- Hon. Alfred Page, Judge.

Reversed and remanded.

Talma S. Hefferman for appellant.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) It is not necessary that the information describe any property kept in the house, or allege that the goods, wares merchandise or other valuable thing kept therein was the subject of larceny. State v. McGuire, 193 Mo. 215; State v. Helms, 179 Mo. 280. (2) Where the State calls a witness whose name is not endorsed on the information, defendant, when said witness is called, should move for a continuance on the ground of surprise; and if he fails to do that, he waives any right to complain by reason of surprise. State v. Whitsett, 232 Mo. 511; State v. Henderson, 212 Mo. 213; State v Manning, 168 Mo. 418; State v. Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225; 1 Bishop's New Crim. Prac., sec. 869a; Ballard v. State, 19 Neb. 609; State v. O'Day, 89 Mo. 559. (3) Duncan was asked if he knew appellant had been in the penitentiary. He answered he did not know, but he heard that he was, to which appellant objected and the court sustained the objection as to the part the witness heard. The court stated that that part would be stricken out and would not be considered by the jury. (4) Instruction 1 concisely defines the offense in the language of the statute and the punishment as announced by the statute and properly defines the word "feloniously." R. S. 1909, sec. 4520. (5) Instruction 2 is properly based upon the evidence as to the condition of the door by which the entrance was made into the saloon, and also properly defines "larceny." State v. Henderson, 212 Mo. 208; State v. Howard, 203 Mo 600. (6) Instruction 3 was a proper instruction upon the recent possession of saloon property. The recent possession of saloon property, taken at the time of the commission of a burglary, is sufficient to justify the jury in finding that the persons in whose possession the same is found was guilty of the burglary as well as the larceny. 1 Greenleaf on Ev., sec. 134; Wigmore on Ev., sec. 153; 4 Elliott on Ev., secs. 2725, 2918; State v. Hammond, 203 Mo. 604; State v. Toohey, 203 Mo. 678; State v. James, 194 Mo. 277; State v. Moore, 117 Mo. 404. (7) In the record proper is incorporated two refused instructions both upon alibi. These instructions are not for review in this court. They are not incorporated in the bill of exceptions. Clerk v. Hughes, 73 Mo.App. 633; Johnson v. Greenleaf, 73 Mo. 671; State v. Johnson, 81 Mo. 60; McLain v. Winchester, 17 Mo. 49; Cline v. Askins, 39 Mo. 39; Montgomery v. Hughes, 81 Mo. 63. (8) The verdict is certain, definite and responsive to the issues joined. It finds appellant guilty of both burglary and larceny and assesses his punishment separately for each offense and no objection can be made as to the form of the verdict.

KENNISH, J. Ferriss, P. J., and Brown, J., concur.

OPINION

KENNISH, J.

Appellant, Harry Conway, Bert Drinkwater and Will Kennedy were jointly charged by information in the criminal court of Greene county, at the April term, 1910, with the crimes of burglary and larceny, alleged to have been committed April 13, 1910. Appellant applied for and was granted a severance. He was tried, convicted of both burglary and larceny, and his punishment assessed at imprisonment in the penitentiary for a term of seven years for the burglary and three years for the larceny. He appealed to this court, but is not represented here by counsel, nor has he filed a brief.

The corpus delicti of each of the crimes charged was fully proven by undisputed testimony. The building burglarized and in which the larceny was committed was a saloon in the city of Springfield. It was shown by the testimony that on the night of April 12, 1910, a sum of between two hundred and three hundred dollars and a gold watch were deposited in the safe, and that the saloon was closed and the doors locked at midnight. At five o'clock the next morning it was learned that the saloon had been burglarized, the safe dynamited and the money and watch stolen. A few days after the burglary, Kennedy, coindictee of appellant, pawned a gold watch in said city, which was identified as the watch stolen from the saloon. During appellant's trial the prosecuting attorney nolprossed the case against Kennedy, and thereupon he testified for the State that appellant gave him the watch and that he pawned it at his request and under his directions. Witness Duke, with whom the watch was pawned, testified that appellant came to him and asked him for more money on a watch, after the watch in question had been pawned, but he further testified that appellant pawned a silver watch with him, on which he then owed appellant a dollar and a half, and that nothing was said by appellant inconsistent with the theory that he had in mind the silver watch and was asking for the balance due on it. There was testimony that appellant, shortly after the burglary, went to a saloon and exchanged ten dollars in silver for a ten-dollar bill, but the witness who testified to that fact said that appellant generally had money and that there was nothing unusual in seeing him with ten or fifteen dollars in his pocket. That was the only evidence of appellant's possession of the money charged to have been stolen.

Appellant interposed a defense of alibi, and in support thereof it was shown that he was under arrest the night of the burglary, for the violation of a city ordinance, and was not released by the police until about two-thirty or three o'clock in the morning; that the police interviewed appellant's mother, who agreed to pay his fine, and that he was then released. Appellant's mother and sister testified that appellant came home immediately after his release; that after talking awhile he went to bed in a room adjoining theirs, having removed his shoes and hat in their room, as was his habit, and that he did not leave his room the remainder of the night.

The appellant, evidently for the purpose of accounting for the fact that he had ten dollars in his possession a few days after the burglary was committed, called a witness named Duncan, who testified that appellant was usually employed; that he had been employed in Kansas City for three or four years preceding the date of the offense. The prosecuting attorney, on cross-examination, asked the witness if he did not know that appellant was in the penitentiary during the time the witness had stated he was in Kansas City. The question was objected to and the objection was overruled, the court stating, "It is competent for the purpose of determining whether this witness knows he was in Kansas City." The witness answered that he did not know how many times he had been in the penitentiary. When further asked if he knew he was in the penitentiary during the time about which he had testified, the witness said: "I don't know whether he was ever in the penitentiary; I hear them say he was." Appellant moved that the answer be stricken out and the motion was overruled. After the motion was overruled and the ruling excepted to, the court, of its own motion, said: "That part which he heard will be stricken out and will not be considered by the jury."

I. In the motion for a new trial complaint is made of the action of the court in overruling defendant's motion to quash the information. The motion to quash assailed the information as being vague and indefinite and as failing to charge the defendant with the commission of any offense. We have carefully examined the information, and it is in conformity with approved precedents. [State v. Watson, 141 Mo. 338, 42 S.W. 726; State v. Moss, 216 Mo. 436, 115 S.W. 1007.]

II. Another complaint in the motion for a new trial was that the witness Kennedy should not have been permitted to testify as a witness for the State because his name was not indorsed on the information. It has been repeatedly held by this court that it is not error to permit a witness, whose name is not indorsed on the indictment or information, to testify for the State. [Sec. 5097, R. S. 1909; State v. Steifel, 106 Mo. 129, 133, 17 S.W. 227; State v. Henderson, 186 Mo. 473, 482; State v. Myers, 198 Mo. 225, 247, 94 S.W. 242.]

III. Objection was also made that Kennedy was not a competent witness against the defendant because he and defendant were jointly charged in the information with the offenses for which defendant was on trial. The defendant was being tried separately. During the trial a nolle prosequi was entered as to Kennedy. When the case was nol-prossed as to him he became a competent witness. [Sec. 5241, R. S. 1909; State v. Beaucleigh, 92 Mo. 490, 4 S.W. 666; State v. Walker, 98 Mo. 95, 9 S.W. 646; State v. Steifel, 106 Mo. 129, 17 S.W. 227.]

IV. Defendant's instruction in the nature of a demurrer to the evidence was properly overruled. The evidence clearly showed that both the burglary and larceny had been committed by some person. There was testimony that defendant was in possession of a part of the stolen property shortly after the burglary was committed. Such evidence was sufficient to take the case to the jury as to both the burglary and the larceny. [State v. Owens, 79 Mo. 619; State v. James, 194 Mo. 268, 92 S.W. 679; State v. Toohey, 203 Mo. 674, 102 S.W. 530.]

V. The refusal of the court to give two instructions on the subject of alibi, requested by the defendant, is also assigned as error in the motion for a new trial. The two instructions are set out in the record proper, but are not made a part of the bill of exceptions, and therefore the action of the court in...