State v. Bates

• Decision Date: 31 May 1904
• Citation: State v. Bates, 182 Mo. 70, 81 S.W. 408 (Mo. 1904)
• Parties: STATE v. BATES.
• Court: Missouri Supreme Court

81 S.W. 408

182 Mo. 70

STATE v. BATES.

Supreme Court of Missouri, Division No.

May 31, 1904.

BURGLARY AND LARCENY—EVIDENCE—SUFFICIENCY —TRIAL—CONTINUANCE—REVIEW —BILL OF EXCEPTIONS—NEW TRIAL—CUMULATIVE EVIDENCE.

1. Evidence on a trial for burglary and larceny examined, and held to justify a verdict finding defendant guilty of larceny only.

2. On a trial for burglary and larceny it is not essential to prove the commission of the offense on the particular day alleged in the indictment.

3. On a trial for burglary and larceny newspaper articles concerning the matter were not evidence, though the editors of the papers might refresh their memories by the date of the articles in fixing the date of the offense.

4. The ruling of the court on an application for a continuance in a criminal case can only be reviewed when the application is incorporated in the bill of exceptions, and the unauthorized act of the clerk in copying the application into the record proper is insufficient.

5. The refusal to grant a new trial in a criminal case on the ground of newly discovered evidence which is cumulative only is proper.

6. The error, if any, in admitting evidence to which no objection was taken or exception made at the time, or where no motion was subsequently made to exclude it, is not reviewable on appeal.

7. On a trial for burglary and larceny, evidence of other offenses committed by defendant on the same day in the same town was admissible for the purpose of showing that defendant was in the town in which the crime charged was committed, and for the purpose of identifying defendant.

Appeal from Circuit Court, Jasper County; Jos. D. Perkins, Judge.

George W. Bates was convicted of larceny, and he appeals. Affirmed.

Newton & Kreider, for appellant. The Attorney General and C. D. Corum, for the State.

GANTT, P. J.

This is a prosecution by information duly verified by the prosecuting attorney of Jasper county, charging the defendant with having burglarized a building belonging to W. S. Crane, and with having feloniously stolen therefrom certain gold fillings, the property of W. W. Flora, therein kept and deposited, of the value of $40 or more. The defendant was duly arraigned, tried, and convicted of grand larceny, but acquitted of the burglary charged. After his motions for new trial and in arrest of judgment were heard and overruled, he appealed to this court.

The facts are these: On the 18th or 19th day of March, 1902, Dr. W. W. Flora, a dentist in Carthage, Mo., was preparing to go to his noonday lunch. He was accompanied by a friend. As he was about to leave the office, the defendant came in, and said he desired some work done. It seems that the dentist's time was engaged for that afternoon, and for some days thereafter, and it was accordingly arranged that the defendant should visit the office of the dentist some days thereafter. The parties then left the office of the dentist. He thinks that he locked the door of his private room, and is positive that he did not lock the door of the reception room. It appears in evidence that prior to the visit of the defendant to the office of Dr. Flora he had visited the office of Dr. Hardaway, and had also made an appointment with him. Dr. Hardaway had an attendant in the person of Miss Wrightsell, who observed the defendant at the time he visited the office. Afterwards, Dr. Hardaway desired some dental supplies, and sent Miss Wrightsell to the office of Dr. Flora. She made the visit soon after 12 o'clock and before 1. On entering the office of Dr. Flora, she discovered the defendant in the reception room. Dr. Flora had not yet returned. When he did return, he began to attend some patient, and at about 2 or 3 o'clock in the afternoon discovered that a considerable amount of gold, more than $40 worth, at least, was missing. The evidence also showed that the defendant had visited the office of at least four other dentists in town, and had made or attempted to...