State v. Graves

• Decision Date: 04 June 1888
• Citation: 8 S.W. 739,95 Mo. 510
• Parties: The State v. Graves, Appellant
• Court: Missouri Supreme Court

8 S.W. 739

95 Mo. 510

The State v. Graves, Appellant

Supreme Court of Missouri

June 4, 1888

Appeal from Hickory Circuit Court. -- Hon. W. I. Wallace, Judge.

Reversed and remanded.

Smith Silver & Brown and Amos S. Smith and C. S. Essex for appellant.

(1) The demurrer interposed by the defendant to the evidence offered by the state should have been sustained. There was a total failure of evidence. It completely fails to support the verdict, so that the necessary inference is, that the jury acted from prejudice or partiality. State v. Chouteau Hunt, 91 Mo. 490; State v. Mansfield, 41 Mo 471, 472; State v. Jaeger, 66 Mo. 173; State v Thomas, 78 Mo. 327; State v. Musick, 71 Mo. 401; State v. Zorn, 71 Mo. 415; State v. Cook, 58 Mo. 546; State v. Preston, 77 Mo. 294; 3 Greenl. Evid. (13 Ed.) sec. 29, and notes et seq., and sec. 30 and notes; State v. Clark, 89 Mo. 423; State v. Burgdorf, 53 Mo. 65. (2) The statements of the attorney for the state in his closing argument were unfair and greatly prejudicial to defendant's case, and the court should have corrected the statements. Lloyd v. Railroad, 53 Mo. 509; State v. Kring, 64 Mo. 591; State v. Lee, 66 Mo. 165; State v. Zumbunson, 86 Mo. 111; R. S., sec. 1919; 1 Bish. Crim. Proc. (3 Ed.) secs. 975, 975a, and 975b; Marble v. Walters, 19 Mo.App. 134; Brown v. Railroad, 66 Mo. 599.

B. G. Boone, Attorney General, for the state.

(1) Remarks of attorneys, during their arguments, should, if error, be objected to and exceptions saved at the time, that the trial court may have an opportunity to rule upon them. It is too late to wait until the motion for a new trial to interpose objections. State v. Forsythe, 89 Mo. 667. (2) The weight to be given the evidence and the credibility of witnesses is purely within the province of the jury. State v. Hert, 89 Mo. 590. It is only where the verdict is wholly unsupported by the evidence that this court will reverse. State v. Hunt, 91 Mo. 490.

Norton, C. J. Ray and Black, JJ., concur, and Brace and Sherwood, JJ., dissent.

OPINION

Norton, C. J.

At the May term 1887, of the Hickory county circuit court, defendant was tried upon an indictment charging him with larceny in stealing nine hundred and fifty dollars, from one William Howard. He was convicted and his punishment assessed at four years imprisonment in the penitentiary, and the cause is before us on his appeal.

It is insisted by counsel that there is no evidence to support the verdict, or at least such a lack of evidence as to justify the belief that the verdict was the result of passion or prejudice. The evidence tended to show that Howard, whose money defendant is charged with stealing, was treasurer of Hickory county and lived at Hermitage, the county seat; that he kept his money in a safe in a small building in the court-house yard; that, on Friday night, the eighth of December, 1883, about one or two o'clock, his safe was blown open and about nine hundred and fifty dollars taken therefrom; that upon an examination being made, a track made by an overshoe was discovered in the vicinity of the said building; that on the road leading to Mill Creek a small bottle was found by the side, or a short distance therefrom, of a track made by an overshoe; that in the field two horses had been hitched; that they had been taken in at a gate and hitched in the field, and had been taken out at the same gate; that the tracks of the horses were followed in the direction of Cross Timbers; that beyond Mill Creek a measure was taken of one of the tracks which corresponded exactly with that taken in the field, and that the tracks went on to Cross Timbers without turning off on either side of the road.

Defendant lived at Cross Timbers, a distance of several miles from Hermitage, and the evidence tended to show that the evening before the Friday night on which the larceny was committed defendant was in possession of the same bottle found near the overshoe track, as before stated. It also tended to show that when Howard, whose money had been stolen, arrived at Cross Timbers the next day (Saturday), that defendant, with whom he was well acquainted, passed in fifteen or twenty feet of him, and seemed to avoid meeting him; that defendant went into a grocery-store on the day of his arrest and said to one Wright, who kept the store, that he had got his overshoes wet in walking across the square in Cross Timbers, and asked him to go and put them away for him; that Wright took them and put them in the stove, but defendant did not tell him to do so. There is evidence in the record tending to impeach witness Wright, who testified to giving the small bottle, found as aforesaid Friday evening, to the defendant at Cross Timbers, and also gave the most damaging evidence against defendant. As he was before the jury, as well as the witnesses by whom it was sought to impeach him, it was for them to pass upon his credibility. The circumstances in evidence above detailed point strongly enough to defendant as a participant in the larceny charged to prevent us from holding that there is no evidence to sustain the verdict, or such a lack of it as to warrant the belief that it was the result of either passion or prejudice.

The defendant offered himself as a witness and testified as follows: "I never received any bottle of medicine of Hub Wright; had nothing to do with it." This was the whole of his evidence. The prosecuting attorney in his closing argument was permitted by the court without rebuke (although objection was made) to comment on the fact that defendant, when on the stand, could have told where he was on the night of the larceny, but failed to make any statement as to where he was. We are asked to reverse the judgment on this ground, and this brings up the question as to whether or not the prosecuting attorney, in commenting upon the evidence given by a defendant in a criminal case who testifies in his own behalf, is confined to what he swore to on his examination, or whether he may, in addition to making comments on what he swore to, also comment on what he might have sworn to, but did not swear to.

By Revised Statutes, section 1918, it is provided that a defendant criminally charged may testify in his own behalf and "shall be liable to cross-examination as to any matter referred to in his examination in chief." By section 1919, it is provided that "if the accused shall not avail himself or herself of his or her right to testify * * * it shall not be construed to affect the innocence or guilt of the accused, nor be referred to by any attorney in the cause, nor be considered by the court or jury before whom the trial takes place." Under these statutory provisions it is clear that a defendant who offers himself as a witness cannot be cross-examined except as to such matters as may be referred to by him in his examination in chief, and it would seem to follow necessarily from this, that the comments on his evidence should be confined to such matters as he testified about in his examination in chief and cross-examination. If a cross-examination is limited only to such matters as the witness testified about in chief, upon what principle can the right be maintained to comment in...