State v. Beaucleigh
| Decision Date | 06 June 1887 |
| Citation | 4 S.W. 666,92 Mo. 490 |
| Parties | The State v. Beaucleigh, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon W. W. Edwards Judge.
Affirmed.
Zach. J. Mitchell and Alexander McElhenney for appellant.
(1) No act, after commission of common enterprise is ended, is admissible. State v. Duncan, 64 Mo. 262-6; State v. Barham, 82 Mo. 67; 2 Bishop Crim. Proc. 230; 2 Wharton Law of Evid., sec. 1206. Evidence of other offences is not admissible saving in a restricted manner, i. e., by instruction. Brand v. Commonwealth, 13 Merr. 290; and recent case of State v. Bayne, 88 Mo. 601. No evidence of intent to defraud the public is in general admissible. 2 Bishop Crim. Proc., sec. 233. (2) Defendant cannot be cross-examined as to matters not testified to on examination in chief. State v. Patterson, 88 Mo. 88. (3) The court erred in its refusal to admit a copy of McDonald's application for relief from the forfeited bond, as corroborative of defendant's explanation of his having forfeited his recognizance. R. S., secs. 2280, 1688. (4) It is the duty of the trial court to instruct fully on the law, whether asked to do so or not. State v Barham, 82 Mo. 67; State v. Palmer, 88 Mo. 568. (5) Where the evidence fails to prove the specific charge in the indictment, but only establishes the general bad reputation of the accused, it is insufficient to support a conviction. 2 Bishop Crim. Proc., sec. 233; Commonwealth v. Harley, 7 Met. 506; Commonwealth v. Kellogg, 7 Cush. 473; State v. Scott, 48 Mo. 424.
B. G Boone, Attorney General, for respondent.
(1) Although the evidence showed that the witness, Byrns, was a party to the crime committed by defendant, and that Byrns had been indicted, it is also shown that the prosecution against him had been dismissed, and he was a proper witness for the state. R. S., sec. 1917; State v. Underwood, 57 Mo. 40. (2) The crime of obtaining the money from Parrott was a continuous one, and the act of defendant, in following him up so as to watch his movements, and report to his partners, if Parrott raised a disturbance or sought to have William Beaucleigh and Byrns apprehended, was as much a part of the common enterprise as the actual working of the "freight bill racket" by which Parrott was induced to part with his money. (3) The evidence introduced, relative to other offences, was admissible against defendant to explain his actions while on the train, and to show the intent with which he did the acts charged. The rule as to the admission of evidence of other offences, as laid down by this court, was not violated in the case at bar. State v. Meyers, 82 Mo. 558; State v. Bayne, 88 Mo. 605. (4) The rule as to the cross-examination of a defendant was not violated in any material particular in this case, and appellant has no cause of complaint in this regard. (5) The trial court did not err in refusing to admit in evidence a copy of an application of one McDonald for relief by a remittitur from a judgment on a forfeited bond -- McDonald having been a security o appellant's on a bond for his appearance at a former term, which bond was forfeited by the non-appearance of appellant. This application was wholly irrelevant and immaterial. It could not have explained appellant's failure to appear, or in any way corroborate his evidence. (6) Appellant having testified, it was not improper to introduce evidence of his general character to affect his credibility. State v. Palmer, 88 Mo. 568. (7) When a defendant is cross-examined as to matters not testified to in chief, and no objections are made or exceptions saved at the time, the same is waived. State v. Mills, 88 Mo. 417. (8) The instructions covered every phase of the case presented by the evidence.
The defendant was jointly indicted, at the May term, 1883, of the St. Louis county circuit court, with one William Beaucleigh and Pat Byrnes, under section 1561, Revised Statutes, 1879, for fraudulently obtaining from one Simpson C. Parrott the sum of three hundred and fifty dollars, by means of false and fraudulent representations and pretenses, and of a false and bogus check. A severance having been granted William Beaucleigh, who afterwards pleaded guilty, and a nolle prosequi having been entered as to Byrnes, the separate trial of defendant came on at the November term, 1885, of said court, and resulted in a verdict of guilty against the defendant, and his sentence to the penitentiary for a term of seven years; in due time, he filed his motion for a new trial, alleging, as grounds therefor, that the court admitted illegal testimony for the state, and excluded legal testimony offered by the defendant; that the court misdirected the jury in matters of law, failed to instruct the jury fully as to the law of the case, and refused proper declarations of law asked for defendant, and because the verdict of the jury was contrary to the law and the evidence in the case, and because of a variance between the proof and the allegations of the indictment. The motion for a new trial having been overruled, the defendant appeals to this court.
The court committed no error in permitting Phillips and Byrnes to testify as witnesses for the state. There is nothing in the record to show that the witness, Phillips, was in any manner disqualified, and the case against Byrnes, jointly indicted with the defendant and confessedly guilty, having been disposed of by a nolle prosequi, as to him, he was a competent witness; these facts only affect his credibility. State v. Clump, 16 Mo. 385; Bishop's Crim. Proc., secs. 1020, 1161.
The acts and declarations of the defendant, after the commission of the offence, though they could not have been given in evidence against his co-defendants, were competent against himself. It is contended that the court improperly admitted evidence of other offences; the only testimony that we find in the record, in which the action of the court was properly objected to and exceptions saved, which can be construed as obnoxious to this objection, is the following: The witness, Byrnes, was asked:
Q. "Was there any understanding between you, as to the part to be taken by each in such transactions?" A. "There was no direct understanding, as I know of."
Q. "How did you know as to what each party was to do?" A. "On former occasions, they done the same thing."
Q. "Done the same thing; what do you mean by the same thing?" A. "Well, when a man was beat of his money, the third man was to see that he went away all right; see what he had to say afterwards."
Q. "Who would you call the third man in this transaction in reference to Mr. Parrott?" A. "John was the third man."
The subject of inquiry immediately preceding the question objected to was the purpose of defendant in remaining on the train with Parrott after witness and Byrnes had gotten off at Pacific, and in answer to the question, "was there any understanding as to what Johnnie was to do, after he left Pacific?" the witness had answered, "not at that very time"; then he was asked the question objected to. The witness, before that, had given in detail the manner in which Parrott had been defrauded of his money, and the part which he, and William and John Beaucleigh, the defendant, had taken in the transaction, and the subject of inquiry to which the question objected to was addressed was the quo animo of defendant in remaining on the train with the victim of the confidence game, after the train left Pacific, where the witness and William Beaucleigh had gotten off, after obtaining his money. The witness had just before testified, without any objection on the part of the defendant, that he and the defendant and William Beaucleigh, for a week or ten days previous to the night on which the offence charged was committed, had been engaged, in the city of St. Louis, in playing confidence games, and that on that night they started out on the Missouri Pacific railroad, for the same purpose. The evidence objected to, tending to disclose the system on which such operations had been conducted by the parties for some days previous, and up to and including the time when this offence was committed, with which defendant was charged, was admissible, for the purpose of showing the intent with which the defendant remained on the train with the defrauded victim, after he had been despoiled of his money. State v. Myers, 82 Mo. 558; Bishop's Crim. Proc., secs. 1126, 1127; Wharton on Crim. Evid., sec. 32; State v. Bayne, 88 Mo. 604.
After a careful examination of the evidence of the defendant in chief, and the...
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