State v. Austin
| Decision Date | 19 November 1921 |
| Docket Number | No. 22906.,22906. |
| Citation | 234 S.W. 802 |
| Parties | STATE v. AUSTIN. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.
Frank Austin was convicted of burglary, and appeals. Reversed and remanded for new trial.
William E. Fish and Roy A. Fish, both of St. Louis, for appellant.
Jesse W. Barrett, Atty. Gen., and a. W. Otto, Asst. Atty. Gen., for the State.
Upon trial the defendant was convicted of the crime of burglary and sentenced to five years in the penitentiary for that crime and was convicted of larceny and sentenced to imprisonment for a term of two years for that crime, and has appealed.
The state relied solely upon circumstantial evidence for conviction. The home of one Tony Barone in the city of St. Louis was burglariously entered in December, 1919, and a lady's coat and a man's brown suit and overcoat and a pillow slip were stolen. These articles were found in the possession of the defendant recently thereafter. Defendant was seen in the immediate vicinity of the said house on the morning of the burglary. The state, over the objection of the defendant, was permitted to show that another house in the city of St. Louis had been burglarized about the middle of the preceding November, and some silverware and other articles stolen therefrom were shown to have been soon thereafter in the possession of the defendant. After his arrest the defendant explained his possession of the property stolen from the Barone house and other property found in his possession by stating that he had received them from a Pullman porter. No testimony was offered in defendant's behalf.
The sole questions in the case, as raised by defendant's assignments of errors, relate to the propriety of the admission of the testimony concerning the burglary and larceny not charged in the information and the giving of instruction No. 4, which authorized the jury to consider the evidence relating to the commission of such other crime to show the intent with which the defendant acted with respect to the possession of the articles charged in the information to have been stolen.
The leading case in this state on the question of the admissibility of proof of crimes other than charged in the information is doubtless the case of State v. Myers, 82 Mo. 558, 52 Am. Rep. 389. In that case the defendant was tried for an attempt to perpetrate a trick to obtain money from a storekeeper. The acts of the defendant constituting the offense charged, standing by themselves, might have been an innocent mistake. The state was permitted to show that defendant attempted and sometimes accomplished the same trick a number of times both before and after the incident which occasioned the charge under which he was being tried. The intent with which the act was committed was the vital question to be determined by the jury, and that case properly held evidence of similar acts admissible to show the intent of defendant.
There is no necessity of proving the intent with which the act was...
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