State v. Zumbunson
| Decision Date | 30 April 1885 |
| Citation | 86 Mo. 111 |
| Parties | THE STATE v. ZUMBUNSON, Appellant.<sup>a1</sup> |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
AFFIRMED.
Joseph G. Lodge for appellant.
D. H. McIntyre, Attorney-General, for the state.
The defendant was indicted in the criminal court of the city of St. Louis, and was charged in one count of the indictment with grand larceny, and in the other with feloniously receiving stolen property. He was convicted on the first count and acquitted on the second. From the judgment of conviction he appealed to the St. Louis court of appeals, which affirmed the judgment, and he now prosecutes his appeal to this court.
We have not been favored with a brief by defendant's counsel, and are thus left to an inspection of the record for the ascertainment of the grounds relied upon for reversal, the first and most material of which is the refusal of the court to give an instruction after the state had introduced all its evidence, to the effect that the evidence offered failed to make out a prima facie case against defendant, and that the jury should acquit. This instruction was properly refused, as the evidence on the part of the state tended to show that defendant, in conjunction with several others, had confederated and conspired together to cheat the prosecuting witness out of two horses which he had taken to St. Louis to sell; that each of the conspirators had their respective parts to play; that defendant assumed the role of an Illinois farmer with a pair of mules for sale, or trade, though the evidence tended to show that he was known in St. Louis by the police as a “capper”; that defendant and his confederates inveigled the prosecuting witness into the sale stable of one Honig, where another confederate acted in the role of a southern mule buyer, and still another as a friend of all parties in consummating a trade with the prosecuting witness for his horses; that while these parties were engaged in trying to trick the prosecutor, whereby it should appear that he had traded his horses for the mules, and while the prosecutor was protesting and refusing to trade, or exchange them for the mules, defendant took the horses and went off with them, against the will and remonstrance of the owner.
The questions of law arising upon this state of facts were fairly put to the jury in the instructions given by the court, in one of which they were told that if they believed, from the evidence, that defendant took and carried away the...
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... ... cannot reverse the judgment because the attorney called the ... accused what the evidence for the State tended to prove him ... The ... above is quoted with approval in State v. Gartrell, ... 171 Mo. 489, 513, 71 S.W. 1045. In State v ... Zumbunson, 86 Mo. 111, 113, this court said: ... "Neither language of invective, if called forth by the ... character of the crime, which the evidence in a case tends to ... disclose, nor urgent appeals to the triers of the facts to do ... their duty, will justify us in reversing a judgment." ... [See ... ...
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...He had a right to comment upon all the evidence in the cause, and to draw conclusions therefrom. State v. Emory, 79 Mo. 461; State v. Zumbunson, 86 Mo. 111; State Grffin, 87 Mo. 608; State v. Hoffman, 78 Mo. 256; State v. Stark, 72 Mo. 37; State v. Hopper, 71 Mo. 433. Brace, J. Sherwood, J.......
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