State v. Jackson

Citation29 S.W. 601,126 Mo. 521
PartiesThe State v. Jackson, Appellant
Decision Date12 February 1895
CourtUnited States State Supreme Court of Missouri

Appeal from St. Charles Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and Remanded.

""Thomas B. Harvey for appellant.

(1) The court erred in its instruction upon the presumption from possession of recently stolen property. (2) The court erred in refusing appellant's instructions upon accounting for the possession of recently stolen property. (3) The verdict was against the weight of evidence.

""R. F. Walker, Attorney General, and ""Lewis H. Brecker for the state.

(1) The instructions are in the form many times approved by this court. They correctly present every issue made by the indictment and the testimony to the jury; they covered every phase of the case and rendered it unnecessary to give some of those asked by the state, while the others did not declare the law, and had no application to the facts. (2) Defendant complains that the court committed error in admitting illegal and irrelevant testimony; however, the record in this case does not show a single exception saved to the admission of any testimony over the objection of the defendant. This being true, this allegation of error will not avail the defendant for the reason that exceptions must be saved at the time of the admission of the evidence, and that, too, after timely objection upon the part of the defendant. ""State v. Foster, 115 Mo. 448; ""State v. Cantlin, 118 Mo 100. (3) The point that counsel for the state made improper remarks in argument to the jury can not be reviewed on appeal, because they were not excepted to at the time and preserved in the bill of exceptions. ""State v Lattimer, 116 Mo. 524; ""State v. Green, 117 Mo. 298; ""State v. Phillips, 117 Mo. 389; ""State v. Dusenberry, 112 Mo. 277. Inasmuch as allegations in motion for new trial do not prove themselves, this alleged error can not be considered by this court. Again, defendant's complaint comes too late when made for the first time in his motion for new trial. ""State v. Foster, supra; ""State v. Cantlin, supra. (3) The evidence establishes the guilt of the defendant beyond question; the recent possession of the stolen property unaccounted for, warranted the jury in finding him guilty; it is only where there is a total failure of proof that a cause will be reversed because of the insufficiency of the evidence. There is no such intimation in this record. ""State v. Cantlin, 118 Mo. 100; ""State v. Minton, 116 Mo. 605.

OPINION

Sherwood, J.

Indictment for burglary in, and larceny from, the dwelling of Otto Martin on the sixteenth of July, 1893, in St. Charles, Missouri. The defendant went acquit of the burglary, and for the larceny his punishment was assessed at three years in the penitentiary.

The burglarious entry was effected in Martin's dwelling house on the night of Saturday, July 15, 1893, when the theft charged was committed. Among the articles stolen was a gold watch.

On Tuesday, the eighteenth of July next thereafter, defendant went into the pawn shop of Thos. Dunn & Co., in St. Louis, and, exhibiting the watch which had been stolen from Otto Martin, handed it to Mr. Merreck and expressed a wish to get a loan on it of $ 10 to $ 20. Asked by Merreck whose watch it was, defendant said it "was all right, that he had won it at a crap game."

Theodore Martin and Thos. Dunn were present and Merreck privately called their attention to the fact that the watch offered to be pawned was the same as that reported to have been lost by Otto Martin of St. Charles, Missouri. In the language of the record, "Mr. Dunn then walked out from behind the counter to where defendant was standing and said something to the defendant, whereupon defendant broke and ran out of the store; he ran very fast; defendant was in the store about five minutes altogether, and left the watch there and never returned to get it."

Theodore Martin, a brother of the owner of...

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1 cases
  • State v. Reynolds
    • United States
    • United States State Supreme Court of Missouri
    • February 12, 1895

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