State v. Rush

• Decision Date: 07 May 1888
• Citation: 8 S.W. 221,95 Mo. 199
• Parties: STATE v. RUSH.
• Court: Missouri Supreme Court

8 S.W. 221

95 Mo. 199

STATE v. RUSH.

Supreme Court of Missouri.

May 7, 1888.

1. ROBBERY — INDICTMENT — DESCRIPTION OF PROPERTY.

Under Rev. St. Mo. 1879, § 1817, providing, that when, in an indictment, an averment is necessary "as to any money or any note purporting to be made or issued by any bank incorporated by law, or made or issued by virtue of any law of the United States, it shall be sufficient to describe such money or note simply as money," the offense, in an indictment for robbery, is well charged by a description of "one piece of current gold coin of American coinage, of the value of ten dollars; and three pieces of current gold coin of American coinage, of the value of five dollars each; and four genuine United States legal tender notes, commonly called `Greenbacks,' of the value of twenty dollars each."

2. CRIMINAL LAW — EVIDENCE — ADMISSIONS.

Defendant, arrested for robbery, made criminating admissions upon being told by the officer having him in custody that his co-defendant had implicated him, but it did not appear that such admissions were induced by promises, threats, or intimidation. Held, that they were voluntary, and admissible in evidence.¹

3. SAME — EVIDENCE TO EXCLUDE ADMISSIONS — WHEN OFFERED.

A defendant's testimony to show that certain criminating admissions should not be admitted in evidence against him, by reason of the circumstances under which they were made, must be offered to the court while that issue is pending. If given while testifying in his own behalf before the jury, it affords no ground for excluding the admissions.¹

4. SAME — EVIDENCE — DISAPPEARANCE OF DEFENDANT — PRESUMPTION.

Evidence that defendant was present in a crowd at the scene of and immediately after the robbery for which he was indicted, and there heard it discussed, and was not again seen in the city until brought back after his arrest, which occurred a year subsequently; a writ having been issued, a reward offered, and diligent search made for him in the mean time; and that, both when arrested and when testifying as a witness, he gave no account of his absence, — is sufficient to warrant an instruction to the jury on the presumption arising from flight.

5. SAME — CUSTODY AND CONDUCT OF JURY — DUTY OF SHERIFF.

Where the only communication shown to have been had between the jury and the sheriff, or any one else, is that the sheriff furnished the jury with cigars at their request, and another person, at the sheriff's direction, threw soap and towels into the hall-way, which was open to the jury-room, and the only separation allowed was brief and proper, there is no misconduct by the sheriff.

6. SAME — NEW TRIAL — MISCONDUCT OF JURY — TESTIMONY OF JUROR.

On motion for a new trial for misconduct of the jury, a juror's testimony denying that he denounced defendant in the jury-room, or there said that he ought to go to the penitentiary on general principles, as testified by an eavesdropper, is admissible, as disclosing nothing in regard to the jury's deliberations, and a new trial was properly refused on the unsupported evidence of the affiant whom the juror contradicted.²

7. SAME — NEW TRIAL — TESTIMONY OF JUROR TO IMPEACH VERDICT.

On a motion for a new trial for misconduct of the jury, after a juror has testified denying the allegations of an eavesdropper that he improperly denounced defendant in the jury-room, defendant's application to examine other members of the jury on that question was properly refused.²

8. SAME.

On a motion for a new trial for misconduct of the jury, evidence that a juror, after the trial, in reply to witness' remark that he "didn't believe the man had ever been robbed," said, "Don't make any difference; R. [defendant] ought to have been sent up on general principles," — is inadmissible, since it would effect an indirect impeachment of the verdict by one of the jurors.²

9. SAME — NEW TRIAL — PREJUDICE OF SHERIFF.

A new trial will not be granted on the ground of the prejudice of the sheriff against defendant, unless it appears that such prejudice was so manifested by word or act as to influence the jury or affect their verdict.

10. WITNESS — COMPETENCY — PROMISE OF REWARD UPON CONVICTION.

The fact that a witness is to receive a reward in the event of conviction may affect his credibility in the minds of the jury, but does not disqualify him as a witness.

Appeal from circuit court, Jasper county; M. G. MCGREGOR, Judge.

George Rush was indicted for the robbery of James Pyrtle. There was a conviction, and defendant appeals.

T. B. Houghawout, for appellant. B. G. Boone, Atty. Gen., for respondent.

BRACE, J.

The defendant was jointly indicted, in the circuit court of Jasper county, with one Seth Beard, for the crime of robbery in the first degree, and on his motion was granted a separate trial. His motion to quash the indictment having been overruled, he was tried, found guilty, and his punishishment assessed at imprisonment in the penitentiary for a term of 10 years, and he was sentenced accordingly. His motion for new trial and in arrest of judgment having been overruled, he appealed, and assigns for error that the court overruled his motion to quash the indictment, admitted incompetent evidence, refused proper and gave improper instructions, failed to declare all the law of the case, and refused to grant a new trial for the improper conduct of the sheriff and the jury.

1. The motion to quash was properly overruled. The offense was well charged. The money charged to have been taken was described as "one piece of current gold coin of American coinage, of the value of ten dollars; and three pieces of current gold coin of American coinage, of the value of five dollars each; and four genuine United States legal tender notes, commonly called `Greenbacks,' of the value of twenty dollars each." A description in terms much more general would have been sufficient under the statute, Rev. St. 1879, § 1817; State v. Burnett, 81 Mo. 119.

2. Sheriff Bailey, sworn as a witness on behalf of the state, was permitted, over the objections of the defendant, to testify to a conversation he had with the defendant, in which he made certain criminating admissions, after answering as follows to preliminary questions: "Question. Did you have the defendant in your custody at that time? Answer. Yes. Was that confession about getting the money from Pyrtle made after you had told Rush that Seth Beard had given him away? A. Yes." E. S. Pike, who arrested the defendant in Kansas, and brought him back to Jasper county, was present at the same conversation, and testified in regard to it. He was also permitted to...