16 S.W. 886 (Mo. 1891), State v. Warford

Citation:16 S.W. 886, 106 Mo. 55
Opinion Judge:Macfarlane, J.
Party Name:The State v. Warford, Appellant
Attorney:Hicklin & Yates for appellant. John M. Wood, Attorney General, and J. A. Selby for the State.
Case Date:June 23, 1891
Court:Supreme Court of Missouri
 
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Page 886

16 S.W. 886 (Mo. 1891)

106 Mo. 55

The State

v.

Warford, Appellant

Supreme Court of Missouri, Second Division

June 23, 1891

April, 1891

Appeal from Daviess Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Reversed and remanded.

Hicklin & Yates for appellant.

(1) Before the accused can be convicted of burglary the evidence must show affirmatively and definitely that the doors through which defendant might have entered were closed. State v. Kennedy, 16 Mo.App. 287; Lowder v. State, 63 Ala. 143; S. C., 35 Am. Rep. 9; Williams v. State, 52 Ga. 580. It is not sufficient to prove that it was the custom to keep the doors closed. Green v. State, 68 Ala. 539. (2) The saddle was not found in the exclusive possession of the defendant. Hence no presumption of guilt could arise as to him. The state's sixth instruction is error, because it asserts that if the saddle was in the possession of defendant, "or of defendant and another," the law presumes his guilt. Such is not the law. State v. Castor, 93 Mo. 250; Taliaferro v. Commonwealth, 77 Va. 411; Shropshire v. State, 69 Georgia, 273; State v. Tilton, 63 Iowa 117; S. C., 18 N.W. 716; 1 Greenleaf, Ev., sec. 33; Wharton, Crim. Ev., sec. 758. (3) Defendant's refused instruction should have been given. He had the right to have the jury instructed upon the theory established by his own, or any other, testimony in the case. State v. Banks, 73 Mo. 592; State v. Anderson, 86 Mo. 309. (4) The mere possession of stolen goods is not sufficient to create the presumption of burglary. The rule in larceny does not apply. The cases of State v. Babb, 76 Mo. 501, and State v. Wheeler, 79 Mo. 366, should not be adhered to. 3 Greenleaf, Ev., sec. 31, and authorities cited; 1 Wharton, Crim. Ev. [9 Ed.] sec. 763; 1 Wharton, Crim. Law [9 Ed.] sec. 818; 1 Wharton, Crim. Law [7 Ed.] sec. 729; Stewart v. People, 42 Mich. 255; State v. Shaffer, 59 Ia. 290; State v. Tilton, 63 Ia. 117; 2 Bishop, Crim. Proc., sec. 747, note 3; Jones v. State, 6 Parker, 125; Com. v. McGarty, 114 Mass. 299; State v. Reid, 20 Iowa 413; State v. Hayden, 45 Iowa 11; People v. Gordon, 40 Mich. 716; People v. Noregea, 48 Cal. 123; People v. Mitchell, 55 Cal. 236. (5) Remarks in a closing argument, dehors the record, are reversible error when calculated to mislead the jury, or excite its bias. State v. Young, 99 Mo. 666; State v. Jackson, 95 Mo. 623; State v. Reed, 71 Mo. 200; State v. Kring, 64 591; State v. Mahley, 68 Mo. 316; State v. Martin, 74 Mo. 547. The rule has even been extended to civil cases with like effect. Gibson v. Zeibig, 24 Mo.App. 65; Fathman v. Tumilty, 34 Mo.App. 236; Holliday v. Jackson, 21 Mo.App. 660; Ritter v. Bank, 87 Mo. 574.

John M. Wood, Attorney General, and J. A. Selby for the State.

(1) The great majority of facts proven in court are not susceptible of mathematical demonstration, and it is only a moral certainty that is required. It is only by giving credence to what a credible witness believes or thinks to be true that juries are enabled to arrive at a verdict in the great majority of cases. 1 Greenleaf, Ev. [14 Ed.] sec. 1, p. 3; State v. Babb, 76 Mo. 504; 1 Greenleaf, Ev. [14 Ed.] sec. 10, p. 17. (2) The sixth instruction for the state is not erroneous for the reason that in the sixth instruction for defendant the court sufficiently explains what is meant by the phrase, "in the possession of defendant and another," by instructing the jury that, although they might find the stolen property was in the possession "of defendant and another," yet, unless they believe defendant and the other person were acting in concert, they might acquit defendant. State v. Bradley, 31 Mo.App. 319; State v. Ware, 69 Mo. 332; State v. Mathews, 98 Mo. 130. (3) The refusal to give the instruction asked by defendant was proper. There was no evidence upon which to base it. State v. Foster, 61 Mo. 549; State v. Jones, 64 Mo. 391; State v. Gilmore, 95 Mo. 554; State v. Kelly & Johnson, 9 Mo.App. 512; State v. Ware, 69 Mo. 332. (4) The sixth instruction for the state, having left to the jury the question of fact as to whether or not the saddle in question was in the barn at the time; as to whether or not the doors of the barn were fastened, as described by the witnesses at the time of alleged burglary; as to whether or not the barn was broken into and entered, and, lastly, as to whether the saddle in question was stolen therefrom -- then the further charge that, if recently...

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