The State v. Rutherford

• Decision Date: 31 October 1899
• Citation: 53 S.W. 417,152 Mo. 124
• Parties: The State v. Rutherford, Appellant
• Court: Missouri Supreme Court

53 S.W. 417

152 Mo. 124

The State v. Rutherford, Appellant

Supreme Court of Missouri, Second Division

October 31, 1899

Appeal from Moniteau Circuit Court. -- Hon. D. W. Shackleford Judge.

Reversed and remanded.

Moore & Williams and W. M. Williams for appellant.

(1) Defendant offered to prove that at different times in 1896 and 1897, prior to his arrest, he collected various amounts of money. The court refused these offers of evidence, on the ground that the time was too remote. In this, there was error. Defendant's testimony connected those transactions with the cash in his possession on the fourth of December 1897. If his evidence was true (and of that the jury were to judge) the money received from these parties was the money he had on hand when he was taken in charge by the officers. It was important for him to show the sources from which that money was derived, and it was wholly immaterial how long prior to that time he had received it. (2) The ruling of the court, that the defendant could only introduce three witnesses, to prove his good character, was erroneous. During the cross-examination of the witnesses, who knew defendant in his boyhood home, the fact was developed by the State, for the evident purpose of weakening their testimony, that he had been absent from his former residence during the year preceding the alleged crime. Part of that time he had lived in St. Louis, and during another part of that time in Cooper county. The court permitted one witness from St. Louis to testify to the reputation defendant had established there for honesty and integrity among his associates in said city, but refused to permit any other to testify upon that point. While it may be true that the trial court can limit the number of witnesses to be called to testify to a particular point in a case, yet this discretion can not be exercised to the injury of defendant. It is submitted that, upon the question of the character or reputation of a defendant in a criminal case, it is an unreasonable rule to limit the number of witnesses to three, and certainly this must be true where the defendant as here, had resided at several places. (3) (a) The first instruction given on behalf of the State, is manifestly erroneous. It fails to include the necessary element constituting the crime with which the defendant was charged. Under its guidance it was not necessary that the taking should have been wrongful or with a felonious intent. State v. Moore, 101 Mo. 326; Witt v. State, 9 Mo. 663; State v. Campbell, 108 Mo. 614. (b) This instruction omits to require that the jury should find that the package containing the $ 500, was the property of the People's Bank. (4) The second instruction given on behalf of the State singles out and gives undue prominence to particular facts and circumstances claimed to have been shown by the evidence. State v. Sivils, 105 Mo. 530; State v. Fairlamb, 121 Mo. 148.

Edward C. Crow, Attorney-General, for the State.

GANTT, P. J. Sherwood and Burgess, JJ., concur.

OPINION

GANTT, P. J.

The defendant was indicted at the January term, 1898, of the Moniteau circuit court, for grand larceny. He was duly arraigned, and at the September term, 1898, was tried and convicted and sentenced to the penitentiary for two years.

The evidence in behalf of the State very conclusively showed that on the third day of December, 1897, a package of money containing five hundred dollars was stolen from the safe of the People's Bank of Tipton, Missouri. Roy F. Bane was the cashier of said bank and testified quite positively that on the afternoon of December 3, 1897, there were five packages of money, each containing five hundred dollars, in the bank's safe, and that afternoon he made up another or sixth package containing five hundred dollars, and placed it upon the top of the other five packages in the safe. He testified that defendant was a life insurance agent and was in the habit of frequenting the bank. On this particular afternoon he came in about 4:30 o'clock. The cashier was busy. Defendant came behind the counter. About five o'clock it became so dark it was necessary to light a lamp. The defendant according to the cashier offered to assist him in any work that he could do, said they would do the work and get out of the bank. The cashier went to the front counter to count the cash, and at that time defendant asked him if he was through with the books and the cashier answered, "All but one." Thereupon defendant said, "I'll put them in the vault for you, and we will get out and go out of the bank." Thereupon defendant made three or four trips into the vault to place the several books in their proper places.

When the cash was counted the cashier found he was out of balance about $ 60, which item he found next morning. He requested the defendant to hold the light while he put the cash in the safe and set the time lock. The cashier did not discover any loss that night, but next morning about 10 o'clock he discovered that the last package he had put in the safe had been abstracted. His father was vice-president of the bank, and he reported the loss to him. He also saw the city marshal, Mr. Clark, and informed him of his suspicions that defendant had taken the package.

That afternoon defendant came into the bank to see the cashier about collecting some premium on a policy and while there the marshal came in and said to the cashier, "Have you said anything to Mr. Rutherford about this matter?" The cashier said he had not, whereupon defendant was told of the loss and their suspicion that he had taken the money. He denied all guilt and then the officer said he would have to search him and asked him to walk into a back room of the bank, whereupon the defendant said, "I'll tell you how much money I have got on my person. I always carry money about me." He then produced $ 165.35. He first said he had $ 200 and after he had produced the $ 165.35, Clark inquired where the balance of the $ 200 was and he said, "I paid $ 25 for a suit of clothes to Henry Lutz this morning, and gave my sister $ 10 last night. She wouldn't charge me any board and I made her a present of ten dollars." The cashier was then called to the front and the defendant said to Clark he was not guilty of that, and didn't want his folks to hear of it. Clark told him Mr. Bane wanted his $ 500, too. He said, "Well, I am not guilty." When he got to the door Clark stepped up to him and defendant turned around and said, "I am not guilty of stealing that money." Clark said, "Mr. Rutherford, this is a part of the bank's money, and nobody got that money but you." At that point defendant fainted, and fell over in the floor.

He was revived, and then Clark told him he wanted to go and search his room, and according to Clark and Bane he said he didn't want him to do it. He wanted to go home, and after he was at home a little while, Clark could come up and he would have his sister let him in and he could search his room. Finally Clark told him he would attend to that. Defendant said, "Don't you go search my room. You have no right to search my room without a search warrant. I forbid you searching my room unless I am present."

The elder Bane and Clark then left defendant at the bank and went to Mr. Newkirk's house, where defendant roomed, Mr. Newkirk being his brother-in-law. In a closet in defendant's room on a shelf that could only be reached by standing on a chair rolled up in a handkerchief, the elder Bane found $ 295. Mr. and Mrs. Newkirk were present when the money was found. The marshal then came out and saw the defendant pass Mr. Newkirk's house and come around by an alley, and he headed him off and arrested him.

Defendant asked to let him give bond and the marshal agreed to do so and took him to the city hall. Mr. Newkirk came to the hall and defendant said, "France, I want you to go my bond. They have got me arrested here. I am not guilty of the charges they have got me arrested for." Mr. Newkirk, according to the State's evidence, said, "It appears very suspicious."

Rutherford says, "What looks suspicious?"

"Why, the amount of money found on you and the amount they found in your room."

Defendant said, "They didn't find any money in my room."

Mr. Newkirk said, "They did."

Defendant said, "Who found any money in my room?"

Mr. Newkirk answered, "Mr. Bane and Mr. Clark there."

"Well," he said, "If there was any money found in my room somebody else put it there, I didn't." Defendant denies this story and says that he said "he didn't know it," that is to say, didn't know they had found the money, but says he didn't disown the money, but says it was his own money.

The State offered much evidence tending to show that immediately before the alleged larceny defendant had no money, that he was indebted for board and other small bills and statements tending to show he had no means of consequence. The defendant offered evidence tending to show he had earned $ 425 as insurance agent; that some two years prior to this affair he had sold two horses for $ 150; that he had money on his person which he had saved. He offered evidence of previous good character for honesty and integrity. At the conclusion of the testimony both the State and defendant asked instructions to the jury.

The court gave the following instructions on the part of the State:

1. If the jury believe from the evidence that the defendant was in the People's banking house at Tipton, Moniteau county Missouri, on December the third, 1897, and that he entered the vault of the said bank with the consent of the cashier thereof, and that when he entered the said vault the safe containing money belonging to said bank was open and that the defendant then and there took a package of money containing...