The State v. Lockhart
| Decision Date | 16 May 1905 |
| Citation | 87 S.W. 457,188 Mo. 427 |
| Parties | THE STATE v. LOTTIE LOCKHART and LILLIE DALE, Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.
Reversed as to appellant Lockhart; reversed and remanded as to appellant Dale.
Thos B. Harvey for appellant.
(1) The only tangible evidence of any character against either of the defendants was Dale's consent to pay Sawyer the amount that he claimed he had lost; but the court must bear in mind her denial all the while that she knew anything of the taking of the money, and that she paid the amount under the duress of threatened arrest. And a payment under such circumstances should not be worth much as in the nature of an admission. Furthermore, such admission is incompetent as proof of the corpus delicti and could not be considered against her until there was aliunde satisfactory proof that the crime had been committed and connecting her with it. (2) The fact that a man had gone to a woman's room on one occasion is not proof of its being a house of prostitution, nor does it warrant such an inference, and certainly cannot afford the least excuse for the ugly and suggestive charge that it was "notorious" as such, or that panel games were worked there. "The courts should not tolerate outside statements of counsel impeaching the character of parties." 2 Ency. P. & Pr., p. 781; Bessette v State, 101 Ind. 85; Proffat on Jury Trial, sec. 250. (3) There was no evidence upon which to predicate the court's fourth instruction upon the theory of two or more acting together in the commission of a crime; and the instruction, framed as it was and improperly injected into the case, was simply an invitation to the jury to convict both of the defendants. State v. Fairlamb, 121 Mo. 149. (4) The court also erred in its ruling as immaterial the effort of defendants to show that on the evening after the alleged loss of the money, Sawyer said: This tended directly to impeach his statement that he had lost his money at 2111 Market street, and was unquestionably competent.
Herbert S. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State.
(1) That Sawyer was the victim of what is commonly known as the "panel game" cannot be questioned. Can it be questioned that these women, or either of them, would have returned him any money unless they had been guilty? What more conclusive circumstance can be presumed than that the money was returned when demanded? (2) The proper method to follow on making an objection to improper remarks of an attorney in argument is to ask the court to reprimand the attorney, and failing in this, to ask an instruction from the court to the jury to the effect that the remarks of the attorney are improper and should not be considered; and if the instruction is refused, save an exception. State v. Fischer, 124 Mo. 460; State v. Brown, 181 Mo. 222. Neither of the methods was followed in the trial of this cause, and the objection cannot be considered in this court. State v. Ray, 53 Mo. 345; Harrison v. Bartlett, 51 Mo. 170.
The defendants appeal from a conviction of grand larceny in the circuit court of St. Louis. The prosecution is by information. There is no irregularity in the record proper. The errors for which a reversal is sought are those which it is insisted occurred on the trial of the cause, and the insufficiency of the evidence.
The prosecuting witness was one Lunsford Sawyer. It appears from his evidence that at the date of the alleged larceny he was rooming in St. Louis on Laclede avenue. Prior to that time he had been a clerk in New York. On the afternoon of the 15th of March, 1904, he left his room about two o'clock in the afternoon and went down into the city and had been down there about an hour and a half when he met the defendant Lockhart about Twentieth street and Pine. He was walking along Pine street and she spoke to him and he stopped and she invited him to her room. He accompanied her to 2111 Market street. She opened the door and he and she went up stairs and went into a front room. Saw no one else until he passed defendant Dale in the hall as he was leaving. The room had folding doors between it and the room in the rear of it, and a curtain, "a lace curtain affair, like lace curtains on a front window," hung in front of the folding door. After he reached the room he proceeded to undress himself and hung his coat on the chair. His other clothing he placed on a trunk at the foot of the bed. The trunk was almost in line with portiere. He did not enter any other room in that house that day. After he had placed his clothing on the trunk, the defendant Lockhart threw the bed cover back over the foot of the bed, and practically over his clothing on the trunk, and got in the bed and he then went to bed with her. He testified he had $ 220 in the hip pocket of his pants, in a pocket-book at his boarding-house that day. The money consisted of one one-hundred-dollar bill, five twenties, and a ten-dollar bill. He had ten more in that pocket and the rest of his money was in an outside pocket loose. He gave the defendant Lockhart $ 1. He says he was in this room perhaps one-half hour, and when he left, he went down stairs by himself and passed the other defendant Dale in the hall, but said nothing to her.
He took a car just after coming out of the said house No. 2111 Market street, and returned to his room and soon after reaching it examined his pocket-book and found all of his money gone but two five-dollar bills. He returned to the city and consulted a policeman who advised him to go and he did return to No. 2111 Market and there met the old woman, the defendant Dale, and inquired for defendant Lockhart, and she told him she was out. He then told her he had lost some money up there that afternoon, and she said she knew nothing about it and requested him to wait until defendant Lockhart returned about seven o'clock. He left and went back at seven that afternoon and found both of the defendants there. He told them the amount he had lost, $ 210, and that they must give it back, or he would have them arrested. Both women protested they knew nothing of his money and the defendant Dale tried to settle with him for $ 100; that she didn't want him to think he had lost his money in her house; but he remained positive in his demand and finally the defendant Dale went into another room and brought him $ 210, but in different denominations from the money he had lost.
Asked if he heard any noise in the room while he occupied the bed, he said, "Not any great noise; I seen these curtains wave like the wind was blowing there and since then, I have kind of mistrusted there must be a person come through that door." He made no mention of the curtains blowing to the woman; he could see the curtains as he lay on the bed. He testified that defendant Lockhart was in his presence all the time he was in the room with her; that most of the time she was on the bed with him and he did not see her touch his clothing; that he dressed himself immediately after getting out of the bed and felt his pocket-book in his pocket. His pocket-book was in a pocket that was buttoned and it was still buttoned when he put on his trousers and felt his pocket-book in there, but he recognized after going to his room that the button was loose, but he did not undertake to say that it was not in that condition when he went to defendant's house and did not observe that condition when he dressed after getting out of the bed. Defendant Lockhart had nothing to say or do about paying the prosecutor any money and took no part in that transaction. In the course of his argument the assistant prosecuting attorney, over the objection of defendants, stated that "2111 Market street is a house of prostitution, an open and notorious house of prostitution," and upon objection that there was no evidence to that effect, the court said, "That is a proper subject of inference from the testimony; you do not need to have the direct statement from the witness." Continuing, the representative of the State said, "I say the young man was a victim of the panel game, and the testimony of young Sawyer goes to show that this was a room wherein a game of this kind could be successfully worked there, and it was worked there." The court held this proper argument.
I. The defendants jointly and severally urge that the verdicts of the jury are without any substantial support in the evidence.
An appellate court always enters upon an examination of this point with reluctance, inasmuch as the law provides that the jury are the judges of all questions of fact, but it has been so long, and well, settled that whether there is any substantial evidence of any material fact is a question for the court, that when the proposition is properly presented it is our duty to consider it just as any other assignment of error. For convenience, the testimony tending to connect the defendant Lockhart with the alleged larceny will be first considered. Her guilt depends altogether upon the evidence of Sawyer. He met her on Pine street, and she solicited him to go to...
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