The State v. Prunty

• Decision Date: 23 December 1918
• Citation: 208 S.W. 91,276 Mo. 359
• Parties: THE STATE v. JESSE PRUNTY, Appellant
• Court: Missouri Supreme Court

208 S.W. 91

276 Mo. 359

THE STATE v. JESSE PRUNTY, Appellant

Supreme Court of Missouri, Second Division

December 23, 1918

Appeal from Audrain Circuit Court. -- Hon. Ernest S. Gantt, Judge.

Affirmed.

A. C Whitson for appellant.

(1) There being no circumstances in any way connecting the defendant with the burglary, not even the circumstance of recent exclusive possession of any of the property alleged to have been stolen, the verdict is contrary to the law and the evidence in the case. State v. Castor, 93 Mo. 250; State v. Warford, 106 Mo. 62; State v Scott, 109 Mo. 230; State v. Drew, 179 Mo. 321; State v. Hammons, 226 Mo. 611; State v Belcher, 136 Mo. 137. (2) Evidence as to other crimes or larceny must be such as to prove the specific crime charged, or prove motive, the absence of accident or mistake, a common scheme or plan embracing the commission of both offenses, or the identity of the defendant charged with the offense. State v. Barnes, 204 S.W. 266; Underhill on Crim. Evidence, sec. 305. (3) While it is admissible to prove the presence of recent unaccounted for footprints or wagon tracks in the curtilage of a house that has been burglarized or in the road leading to it, such evidence must not be too remote. The testimony as to car tracks three-fourths of a mile from Farber was entirely too remote, nor was the time when made proved or any connection shown with the defendants by any circumstances. The evidence of Gray as to such tracks should not have been admitted. Underhill on Crim. Evidence, sec. 374. (4) Possession of stolen property to be evidence of guilt must be exclusive, not constructive. A defendant can only be required to account for the possession of things which he actually and knowingly possesses, that is where the goods are found on his person, or in his private apartment or in a place of which he keeps the key. The possession must not be second-hand; neither will a defendant be required to account for a possession which could also with equal right be attributed to another. State v. Drew, 179 Mo. 320; State v. Warford, 106 Mo. 63; State v. Castor, 93 Mo. 252; State v. Mills, 58 Mo.App. 159; Van Straten v. People, 56 P. 905. (5) If recent exclusive possession of stolen property is shown in defendant, it may be explained by the facts and circumstances in the case or rebutted by evidence of good character or by alibi, and if so explained or rebutted the instruction on such point must give the defendant the benefit of such good character or of alibi. State v. North, 95 Mo. 615; State v. Wright, 199 Mo. 166; State v. McNalley, 87 Mo. 659; State v. Taylor, 118 Mo. 173; State v. Mills, 199 S.W. 133. (6) Recent, exclusive, unexplained possession of stolen property may be sufficient evidence to sustain a conviction of larceny, and perhaps most of the authorities agree that it makes a prima-facie case if a crime has been shown to have been committed by some one. According to the weight of authority it is rather a presumption of fact, or circumstantial evidence, and is governed by rules of that class of evidence. It being a mere inference of fact or prima-facie proof the court erred in charging the jury to convict on that alone, thereby in effect directing a verdict of guilty, or at the least putting the burden on the defendant of proving his innocence of the charge against him. It is a fundamental principle that no amount of evidence can shift the burden of proof from the State. The weight or force of any such evidence is for the jury. 1 Greenleaf on Evidence, sec. 34, note E; Van Straten v. People, 56 P. 905; Ayers v. State, 21 Tex.App. 399; State v. Brady, 91 N.W. 805; State v. Hodge, 50 N.H. 510; Wigmore on Evidence, sec. 2513; Underhill on Crim. Evidence, sec. 299. (7) Alibi is not an affirmative defense but merely ordinary evidence in rebuttal, and there is no burden on the defendant to prove such alibi, but if all the evidence in the case raises a reasonable doubt of defendant's presence at the place of crime or elsewhere, he is entitled to have such doubt carried into the whole case and be acquitted. The court must not by instruction place the burden of such defense on the defendant or in any way disparage it. The proof though insufficient to establish the defense must not be excluded from the case by the instructions. State v. Taylor, 118 Mo. 174; Johnson v. State, 21 Tex.App. 368; State v. Crowell, 149 Mo. 391; State v. Jones, 153 Mo. 461; State v. Cushenberry, 157 Mo. 189; State v. Howell, 100 Mo. 664. (8) The Prosecuting Attorney must in his argument to the jury confine himself to facts developed at the trial. He must not comment on what defendant failed to say or do in his defense. State v. James, 216 Mo. 402; State v. Drummins, 204 S.W. 271.

Frank W. McAllister, Attorney-General, Henry B. Hunt, Assistant Attorney-General, for respondent.

(1) The evidence conclusively connects appellants with the burglary. The circumstances in evidence, of recent possession of the stolen property, were amply sufficient to raise a presumption of the burglary by them, which, together with their explanation of such possession, was a question for the jury. State v. Armstrong, 170 Mo. 408; State v. Yandle, 166 Mo. 594; State v. Dale, 141 Mo. 288; State v. Hutchinson, 111 Mo. 263; State v. Toohey, 203 Mo. 678. (2) The evidence of McCoy that the Ford car in possession of appellants was stolen property, and the evidence of Kunst, identifying said car, was admissible. Proof of other larcenies is admissible to prove: (a) The connection of the appellants with the transaction of which they stand accused. 3 Bishop's New Crim. Procedure, sec. 750; Clampitt v. United States, 6 Ind. Ter. 95; State v. Ditton, 48 Iowa 678; State v. Conway, 241 Mo. 279. (b) A common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. State v. Hyde, 234 Mo. 226; State v. Bailey, 190 Mo. 280. (c) Preparation. Kelley's Crim. Law, sec. 372; State v. Kelley, 65 Vt. 535; State v. Rider, 95 Mo. 485; State v. Sharp, 233 Mo. 287. (d) Preparation for flight. Underhill, Crim. Evidence (2 Ed.), sec. 118, p. 220. (3) The footprints and automobile tracks were not too remote in point of time or distance, nor was the evidence too remote to connect appellants with this automobile. Underhill, Crim. Evidence (2 Ed.), sec. 374; 8 R. C. L. 175. There were no objections made by counsel for appellants to the introduction of evidence as to the footprints of the three men. State v. Levy, 262 Mo. 191. (4) The possession of the stolen property was not second hand. The possession was rightly attributed to both appellants. "Possession, in this connection is not necessarily limited to custody about the person. It may be of things elsewhere deposited, but under the control of a person. In short, it may be in any place where it is manifest it must have been put by the act of the party or his undoubted concurrence." 17 R. C. L. p. 73, sec. 77; 18 Am. & Eng. Ency. Law (2 Ed.), 487; State v. Johnson, 60 N.C. 237; State v. Phelps, 91 Mo. 483. (a) Under the facts in this case, the jury was warranted in finding that appellants were jointly in possession of the stolen property. The possession, to raise a presumption of guilt, need not be exclusive. A joint possession is sufficient. State v. Toohey, 203 Mo. 679; State v. Baker, 264 Mo. 355; State v. Phelps, 91 Mo. 483. (b) The transaction, as to the manner in which Adams became possessed of Funk's grip, was extraordinary and unusual. All the circumstances surrounding this matter raised a suspicion that both Prunty and Funk were concerned in the offense charged, all of which was a question for the jury. State v. Schaffer, 70 Iowa 375. (5) The instruction given on the question of alibi was correct. State v. Brown, 247 Mo. 727; State v. Barton, 214 Mo. 322; State v. Davis, 186 Mo. 539. (a) It was not necessary that the instruction concerning the recent possession of stolen property should contain a reference to the alibi set up by appellants. The general instruction given as to alibi applied to the whole case. State v. Maher, 132 Mo. 281; State v. Riney, 137 Mo. 105; State v. Walker, 194 Mo. 263. (b) Instructions must be considered all together; and if, as a whole, they present all the essential elements of the offense, and advise the jury on all questions of law arising in the case, they are not erroneous. State v. Maher, 132 Mo. 281; State v. Kinder, 184 Mo. 295; State v. Montgomery, 230 Mo. 671; State v. Riney, 137 Mo. 105; State v. Walker, 194 Mo. 263. (6) The instruction given, concerning possession of stolen property, was correct, and did not shift the burden of proof to appellants. State v. James, 194 Mo. 277; State v. Moore, 101 Mo. 324; State v. Levy, 262 Mo. 191. These instructions submitted to the jury the question whether the prima-facie case presented by the State was overthrown, and the jury was properly instructed that if such presumption was not overthrown, it should prevail. State v. Kelly, 73 Mo. 616; State v. King, 214 Mo. 390; State v. Court, 225 Mo. 614. (7) The instruction on alibi was sufficient in form and substance. State v. Barton, 214 Mo. 322; State v. Brown, 247 Mo. 727; State v. Davis, 186 Mo. 539. The court by such instruction, did not place the burden of that defense on appellants, or in any way disparage it; nor did such instruction exclude any of the proof relative thereto. State v. Hale, 156 Mo. 109; State v. Bateman, 196 Mo. 41. (8) The remarks of the prosecuting attorney complained of, not being embodied in the motions for new trial, are not reviewable. State v. Nickens, 122 Mo. 611; State v. Thavanot, 225 Mo. 550; State v. Miles, 199 Mo. 547.

OPINION

WHITE, C. --

The appellant and one Harry Funk were tried on a joint information...