State v. Turner

• Decision Date: 31 May 1892
• Parties: STATE v. TURNER.
• Court: Missouri Supreme Court

19 S.W. 645

110 Mo. 196

STATE v. TURNER.

Supreme Court of Missouri, Division No. 2.

May 31, 1892.

BURGLARY — IDENTITY OF ACCUSED — REVIEW OF EVIDENCE — CROSS-EXAMINATION OF ACCUSED — CREDIBILITY — REASONABLE DOUBT — INSTRUCTIONS.

1. Where the owner of a house in which burglary was committed, and his wife, testified positively that they recognized defendant as the

guilty person, the one having seen him while he was retreating from the house, and the other while he was in their room, a verdict finding him guilty will not be disturbed, although the husband and wife did not communicate to each other the fact that they had recognized him until several hours after the commission of the crime, and notwithstanding evidence tending to prove an alibi.

2. There is no error in an instruction that defendant is not incompetent to testify against himself; that the fact that he is testifying in his own defense is to be considered in determining his credibility; that whatever he says against himself is presumed to be true; and that the jury are not bound to believe his testimony in his own behalf, because it is said to prove his innocence.

3. By a reasonable doubt is not meant certainty beyond all doubt whatsoever, but that defendant should be acquitted if there is some substantial doubt, arising from the evidence, or the want of it, which is not a mere possibility of innocence.

4. Under Rev. St. § 4218, providing that a defendant shall be competent as a witness in a criminal prosecution, and that he shall be liable to cross examination "as to any matter referred to in his examination in chief," where defendant testified that at the time of the commission of the crime he was at home, in bed, with a sick child, it was not permissible to ask him, on cross-examination, over his objection, whether he had not said in the presence of named persons that the boy was in a deep sleep, and snoring.

5. Cross-examination of the accused upon matters not called out in the examination in chief is waived, unless an objection is made, and exception saved. State v. Mills, 88 Mo. 417.

Appeal from circuit court, St. Louis county; W. W. EDWARDS, Judge.

Jordan Turner was convicted of burglary and larceny, and he appeals. Reversed.

Zach. J. Mitchell, for appellant. The Attorney General, for respondent.

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 12 years. Upon the trial a burglary of the dwelling house of John Wishart, and the larceny therefrom of seven or eight dollars in money, and a few small articles of property, were shown beyond question, — indeed, they were undisputed. 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 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 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 a half to three quarters of a mile, to the railroad. He did not inform these parties that defendant was one of the burglars until they got to the railroad. Some of them then went to defendant's yard fence. They made no arrest at that time, nor does it appear that inquiries were made as to whether defendant was in. Defendant offered several witnesses, who testified that after hearing the pistol shots they saw two men running from the direction of Wishart's; that they knew defendant, and he was neither of these men. Testimony was also offered tending to prove that defendant had not been from home that morning. Several witnesses also testified to defendant's previous good character.

The general instructions given by the court, on its own motion, were full, fair, and covered every phase of the case, and no objections are raised to them. The following instructions, asked by the state and given by the court, are objected to by defendant: "(1) The court further instructs the jury that the defendant, Turner, is not incompetent to testify as a witness in the case against himself, but it is proper for you to recollect that the fact of his being the person on trial and testifying in defense of himself may be considered for the purpose of determining his credibility as such witness; and, further, that in considering what the defendant has said concerning the matter charged against him, after it was done, you should consider it altogether. He is entitled to the benefit of what he so said for himself, tending to prove his...