Hemmaker v. State

• Decision Date: 31 March 1849
• Citation: 12 Mo. 453
• Parties: HEMMAKER v. THE STATE OF MISSOURI.
• Court: Missouri Supreme Court

12 Mo. 453

HEMMAKER

v.THE STATE OF MISSOURI.

Supreme Court of Missouri.

March Term, 1849.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

This was an indictment found by the grand jury of St. Louis county against the defendant, Peter Hemmaker, charging him with grand larceny in the county of St. Louis. On the trial of said indictment, the State introduced as a witness one John or Frederick Nahouse, who testified that himself and defendant were passengers on board the ship Washington, from Bremen to the United States; and that they landed at New Orleans, in the State of Louisiana, on the first day of January, 1848; that there was a large number of passengers on board the said ship; that he was slightly acquainted with Hemmaker. They did not sleep together. The said witness had in his possession a watch, which was stolen from his pocket on the morning they landed, between four and five o'clock in the morning. He did not know who took it, he was asleep at the time it was taken. The defendant slept on the opposite side of the ship from where witness slept; he did not see the defendant about his berth on that night. The witness further testified that the watch was worth twelve dollars, or that he gave that sum for it; does not know its value in New Orleans at the time he lost it--he made no search for the watch. Witness started for St. Louis the second day after he landed, and has resided here ever since. The defendant remained in New Orleans some three months after they landed, and then came to St. Louis. After he had been in St. Louis some short time, probably about a month, I asked him for my watch. He said he had no watch. I got a search-warrant, went with the officer to the house he boarded at, and he gave up a watch that I recognized to be mine. Hemmaker knew my watch as well as I did. The witness further testified that he could not tell why he suspected the defendant for stealing his watch. The State introduced another witness to prove the identity of the watch, and also to prove that the defendant gave it up to Nahouse, in St. Louis.

The defendant introduced Thomas Cohen and Albert Cohen, watchmakers and jewelers residing in the city of St. Louis, who testified that the watch was worth from seven to eight dollars at that time; the main spring and crystal being broken, and the watch otherwise out of repair. New watches like it were worth $15. Albert Cohen testified that he could sell such watches for seven dollars The price of said watch at New Orleans he could not tell.

After the case was closed the court gave the following instructions to the jury: 1st. If you find from the evidence that the defendant stole the watch mentioned in the indictment from the witness, Nahouse, in the State of Louisiana, and brought the said watch into the county of St. Louis in this State, that the watch was of the value of ten dollars, and was the property of John Frederick Nahouse, you ought in such case to find the defendant guilty of grand larceny, and fix his punishment in the penitentiary not less than two, nor more than five years. 2nd. Possession of property proven to have been stolen when such possession is recent after the theft, raises the presumption that the person in possession is the thief; but the strength of this presumption is weakened by lapse of time between the loss of the property and the finding it in the possession of another; to the giving of which instructions the defendant excepted.

The defendant asked the court to instruct the jury: 1st. If they believe from the testimony that the watch charged to have been stolen by the defendant was stolen in the city of New Orleans, in the State of Louisiana, they will find the defendant not guilty. 2nd. Before they can convict the defendant upon the evidence offered on part of the State, it must appear that the defendant was guilty of larceny according to the laws of Louisiana. 3rd. Before the jury can convict, the defendant must prove by the laws of Louisiana where the offense is alleged to be committed, that said offense was made larceny by the laws of Louisiana. 4th. The possession of stolen property, unless it be recently after the larceny is committed, raises no presumption that the party in possession was the thief If the jury, therefore, believe that the defendant was found in possession of the watch four months after the larceny was committed, such possession is not, in contemplation of law, a recent possession, unless the jury...