State v. Barton

• Decision Date: 31 October 1853
• Citation: 19 Mo. 227
• Parties: THE STATE, Respondent, v. BARTON, Appellant.
• Court: Missouri Supreme Court

19 Mo. 227

THE STATE, Respondent,

v.BARTON, Appellant.

Supreme Court of Missouri.

October Term, 1853.

1. Separation of jury in a criminal case no ground for a new trial, unless they have been tampered with. (State v. Whitney, 8 Mo. 165, affirmed.)

2. On the trial of A., who had been jointly indicted with B. for grand larceny, an intercepted letter addressed by A. to a person whom he called C., warning him to make his escape, was held admissible against A., without any proof identifying C. with B., there being other independent evidence that A. and B. committed the larceny.

Appeal from Pike Circuit Court.

Barton was jointly indicted with one Burke alias Ringold, for grand larceny, and on a separate trial was convicted. The evidence showed that the larceny was committed at Shaw's hotel, in the city of Louisiana. Franklin S. Torrey went to bed there on the night of August 9th, 1853, having about forty dollars in money in his pantaloon's pocket, and a gold watch, which he placed under his pillow. The money consisted in part of two Mexican dollars and two five-franc pieces. In the morning, the money and the watch were gone. On the previous evening, Torrey had been in company with Ringold at a grocery and had ““treated.” and had received in change some of the money of which he was robbed. On the morning of the robbery, Torrey met Barton and informed him of it. Barton said he had been robbed too, and had no money except one dime. Torrey caused Barton to be searched, when two five-franc pieces and two Mexican dollars were found in one of his shoes. On the same day, Barton delivered to the mail agent, on board of the steamboat Die Vernon, a letter addressed to “J. J. Patterson, Alton, Illinois.” This letter, which is set out in the opinion of the court, was offered in evidence, and to its admission, the defendant excepted. The statements of Barton, when he delivered the letter to the mail agent also appear in the opinion of the court. There was evidence tending to show that Ringold left Louisiana in a skiff, during the night of August 9th, and went down the river to wards Alton.

The following instructions, among others, were given at the instance of the defendant:

2. Unless the jury believe from the evidence, either that Barton stole the money and property, as charged in the indictment, or that Ringold committed the larceny, and that Barton was present, aiding and abetting in its commission, they must find Barton “not guilty.”

4. If the jury believe from the evidence, that Burke alias Ringold, committed the larceny, as charged, and that the prisoner knew, before Burke committed said larceny, that he intended to commit it, and that it was understood between the prisoner and Burke that, after the larceny, the money and property was to be divided between them, and that on the next day, the prisoner aided Burke to escape, still the prisoner is not guilty, unless they find also that he was present, aiding and assisting in the commission of the larceny. charged in the indictment, and they must find a verdict of not guilty.

5. In weighing and considering the evidence on the part of the prosecution, if the jury can account, in a reasonable manner, for every one or all the material facts, consistently with the innocence of the accused, it is their duty to acquit.

The following, asked by the defendant, was refused:

6. In order to connect Barton, in any manner, with Burke or Ringold, in the perpetration of the offense charged, it is necessary for the prosecution to prove that Burke or Ringold, mentioned in the indictment, is the same identical person who was concerned in the perpetration of said offense.

The jury found the defendant guilty. In support of the motion for a new trial, the defendant filed the affidavit of two of the jurors, to the effect that the jury had separated during the trial. The prosecuting attorney then filed the affidavit of the same two jurors, together with six others, that they had not conversed with any person other than themselves about the cause, during the trial. The motion for a new trial was overruled, and the defendant appealed.

Blennerhasset & Shreve, for appellant.

Clover & Hawkins, for the State.

RYLAND, Judge, delivered the opinion of the court.

The defendant was indicted with one Valentine Burke, otherwise called Ringold, for grand larceny, at the September term of the Circuit Court of Pike county, A. D. 1853. The defendant was tried and found guilty. He moved for a new trial, which being overruled, he appealed to this court. The appellant relies, for a reversal, upon the acts of the court below in admitting a letter to be read to the jury; in refusing to give the sixth instruction asked for by the appellant; and because the jury separated during the trial.

1. The affidavits upon the motion for a new trial, in regard to the separation of the jury, do not make a case calling for a new trial. This point is therefore ruled for the State. State v. Whitney, 8 Mo. 165.

2. As to the admission of the letter in evidence, there is no error, in our opinion, on this point. The defendant below, appellant here, said to a witness, that he had written to a man by the name of Patterson, in Alton, a friend of his, to look out for the thief and arrest him; he said that Patterson was a vigilant man, and he was sure he would arrest him. The witness then replied to Barton, that there were some...