State v. Barker

• Decision Date: 23 February 1923
• Docket Number: No. 24166.,24166.
• Citation: 249 S.W. 75
• Parties: STATE v. BARKER.
• Court: Missouri Supreme Court

249 S.W. 75

STATE v. BARKER.

No. 24166.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from Circuit Court, Greene County; Orin Patterson, Judge.

John Barker was convicted of grand larceny, and he appeals. Reversed and remanded.

Hamlin & Hamlin, of Springfield, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

WHITE, J.

By information filed in the criminal court of Greene county defendant was charged with burglary and larceny in that on August 26, 1920, he broke into the garage of W. P. Walton and stole therefrom a Dodge automobile, the property of said Walton.

On the trial the evidence showed that Walton on the night of August 26, 1920, left his automobile in his garage in Springfield; that he closed and possibly locked the door; that the only way in which the car could be taken out was through such door. He was aroused about 1 o'clock on the morning of the 27th. He found the garage door open and his car in the street about 60 feet from the entrance to the garage.

One R. S. Harvey testified for the state that he went with the defendant for the purpose of stealing the car. They found the door of Walton's garage partly open. They pushed it put and got 20 or 30 yards from the garage when they heard a woman scream in a nearby house, and they ran away. Harvey was charged by information with burglary and larceny, and his case was pending undisposed of at the time of the trial of the defendant.

A Mrs. McLeod who lived across the street was awakened by the noise of the automobile and screamed and called to her son, who notified Mr. Walton. The defendant was arrested on the 27th day of September following. According to the police officer who made the arrest, he attempted to escape and attempted to use a weapon at the time of the arrest.

Defendant introduced evidence to show that he was in Pitcher, Okl., the night the car is alleged to have been stolen.

In rebuttal, to contradict the evidence of the alibi, the state offered evidence of officers, who said they were watching the appellant, to show that they saw him in Springfield August 26th, the day before the car was said to have been stolen, and on the 27th and 28th of August.

On this evidence the jury found the defendant guilty of grand larceny and assessed his punishment at two years' imprisonment in the state penitentiary. From the judgment thereupon rendered the defendant appealed.

I. The state, in rebuttal, introduced several police officers and propounded questions of which the following are samples:

The state's attorney examined Al Sampey, a policeman, as follows:

"Q. State to the jury whether in that time, especially in Springfield, you became familiar with a number of people who have violated the law and made it necessary for the police force to watch them a good deal.

"By Mr. Hamlin: Defendant objects to the question as immaterial in this case.

"By Mr. Lovan: The purpose is to show that he had a particular reason for watching this defendant.

"By Mr. Hamlin: I object to those remarks. "By Mr. Lover.: This is with reference to his alibi.

"By Mr. Hamlin: There is no way to distinguish this man from any other man; he can show his convictions and show his record.

"By the Court: Objection overruled, to which ruling defendant duly excepted at the time."

The witness answered in the affirmative, and the following ensued:

"Q. Now state to the jury whether or not you and the other members of the police force along in the summer, from June on through the summer, when you became possessed of the knowledge that a large number of automobiles had been stolen from this community, and you on that account were paying special attention to a number of men who had been known to be law violators, and among the number you were particularly watching was this defendant. "By Mr. Hamlin: Defendant objects to this question in the first place because he can't tell anything about any other member of the police force, what they might be doing. It is too indefinite and uncertain as to time and immaterial and irrelevant in this case. They can't prove any other charge here except the one on trial. Objection overruled, to which ruling defendant duly excepted at the time.

"By Mr. Lovan: I want to state that the defendant testified he was somewhere else on August 26th and 27th, and I want to show just at that time a number of automobiles had been stolen, and that the police force had a strong suspicion this defendant was one of the guilty parties, and for that reason was watching him particularly at that time.

"By Mr. Hamlin: I object. If they can show this man was at a different place, that is a different proposition, but you can't try a man on suspicion. Objection sustained.

"By Mr. Lovan: Do you remember, Mr. Sampey, about a trip that you took?

"By the Court: I want the state to understand that the court will permit the state to show if it is seeking to do that by this witness, that he was watching the defendant at that time, to which ruling defendant duly excepted at the time.

"By Mr. Lovan: I will lead up to that."

The witness was then permitted to state that he had been watching the defendant for a couple of months, and that the defendant was in Springfield on the evening of the 26th of August Witness Dodd, a policeman, was asked this question:

"Q. State to the jury whether or not you, along with other members of the police force, were keeping watch on this defendant about that time [July and August].

"By Mr. Hamlin: Defendant makes the same objection to this question as like question asked Mr. Sampey."

This was overruled and exception saved, and the witness permitted to say that they were watching the defendant and saw him in Springfield on the 26th of August.

Questions of that character were asked other members of the police force, and objections overruled.

Policeman McAdow, after stating that he saw John Barker on Campbell street the evening after the car in question was rolled out of the garage, was asked this question:

"Q. That is the same time that Thompson and Fisher [policemen] searched a car for whisky? A. Yes, sir.

"Q. Did you see Barker there? A. He was standing right there.

"Q. Who claimed the car they were searching?"

This question was objected to because the defendant was not charged with having taken that car. Objection overruled, and defendant excepted. The witness then was permitted to answer in a way to indicate that Barker was making some claim to the car.

The damaging character of this testimony may readily be seen. It puts before the jury a situation where the police were watching this particular defendant, as a suspect, on account of numerous cars supposed to have been stolen in that community. It indicates that the defendant was a habitual criminal upon whom the officers of the law kept constant watch. There was no effort whatever to connect the defendant with the theft of any car other than the one in question, and no connection whatever is shown between the vigilance of the police in respect to him and the particular crime charged. Nothing could be more remote from the case.

A great many other questions of similar character were asked and objections overruled where objections were perhaps too general to warrant a review. The objections stated above, however, are sufficiently specific to authorize a review. The objections to the first question were that the witness could not state what other members of the police force were doing; that the question was too indefinite and uncertain as to time; that it was immaterial and irrelevant to this case; that they could not prove any other charge except the one on trial. Undoubtedly the object of the question was to impress upon the jury a suspicion that the defendant had been guilty of other crimes. Besides, the objection that the evidence sought to be elicited was irrelevant and immaterial, we think, is sufficiently specific in this case. It has been held that, where evidence offered is on its face so foreign to the issue on trial that it could have no connection with or relation to the offense charged, an objection for irrelevancy is sufficient. State ex rel. v....