19 S.W. 645 (Mo. 1892), State v. Turner

Citation:19 S.W. 645, 110 Mo. 196
Opinion Judge:Macfarlane, J.
Party Name:The State v. Turner, Appellant
Attorney:Z. J. Mitchell for appellant. John M. Wood, Attorney General, for the State.
Case Date:May 31, 1892
Court:Supreme Court of Missouri
 
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Page 645

19 S.W. 645 (Mo. 1892)

110 Mo. 196

The State

v.

Turner, Appellant

Supreme Court of Missouri, Second Division

May 31, 1892

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.

Reversed and remanded.

Z. J. Mitchell for appellant.

John M. Wood, Attorney General, for the State.

OPINION

Page 646

[110 Mo. 197] Macfarlane, J.

Defendant was indicted, tried and convicted in the circuit court of St. Louis county of burglary and larceny in a dwelling-house. The sentence was for confinement in the penitentiary for twelve years.

Upon the trial a burglary of the dwelling-house of John Wishart, and the larceny therefrom of $ 7 or $ 8 in money, and a few small articles of property, were shown beyond question; indeed, they were indisputed. The issue turned upon the question whether these offenses were committed by the defendant.

The testimony showed that John Wishart lived in the town of Kirkwood, in St. Louis county, his dwelling consisting of two stories. Defendant lived in the same town, had worked for Wishart three years, and was well known to himself and wife. He had only worked for Wishart occasionally since his residence in this particular house, but was familiar with the premises. On the morning of July 22, 1891, about dawn, Mrs. Wishart was awakened by a noise in the room, and raising up in the bed she discovered a man in her room on his knees trying to unlock a drawer of her dressing case. When the man found himself detected, he arose and slipped out at the door of the room. This room was in the second story of the house and fronted east. Mrs. Wishart waked her husband, telling him there was a man in the house, giving no name. Her husband arose and went to the back window of the house and fired his pistol for the purpose, as he said, of waking the hired man. Mrs. Wishart, as she testified, went to the front window, and on looking out saw two men going out through the front lawn. She called to her husband, and about the same [110 Mo. 198] moment one of the men turned and fired a pistol, the ball passing through the window and into the ceiling. Two or three additional shots were fired at and through the window. Mr. Wishart went to this window, raised it and fired at the men. On the trial, Mr. Wishart testified that when he fired at the men through the window he recognized defendant as the one doing the shooting, and Mrs. Wishart testified that she recognized defendant while in the room, and afterwards while on the lawn. They were both positive in their identification, though the wife admitted that she did not inform her husband that she recognized defendant until breakfast, some two hours after the burglary, but he was absent from the house most of that time. After the men had escaped Mr. Wishart, in company with the marshal, and two neighbors, undertook to follow these men, and did so for...

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