State v. Brown

• Decision Date: 02 February 1909
• Citation: 115 S.W. 967,216 Mo. 351
• Parties: STATE v. BROWN.
• Court: Missouri Supreme Court

115 S.W. 967

216 Mo. 351

STATE v. BROWN.

Supreme Court of Missouri, Division No. 2.

February 2, 1909.

CRIMINAL LAW (§ 786)—INSTRUCTIONS—CREDIBILITY OF ACCUSED.

An instruction that accused was a competent witness in his own behalf and that the jury could consider his testimony, but that in determining the weight to be given it the fact that he was on trial and interested in the result, was not erroneous as directing the jury to ignore his testimony, though he and prosecuting witness were the only witnesses.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

E. L. Brown was convicted of obtaining property under false pretenses, and he appeals. Affirmed.

This appeal on the part of the defendant is from a judgment of conviction for obtaining property under false and fraudulent representations, rendered in the Butler county circuit court. On the 17th day of February, 1908, there was filed in the office of the clerk of the circuit court of Butler county, Mo., in vacation of said court, transcript of a preliminary examination in this cause. Subsequently, on the 24th day of February, 1908, in vacation of said court, the prosecuting attorney of said county filed an information against the defendant, substantially charging that the defendant, at said county, on or about the 21st day of December, 1908, did feloniously, designedly, knowingly, and fraudulently, with the intent then and there to cheat and defraud one J. S. Kochtitzky, by falsely representing to the said Kochtitzky, that he, the said Brown, had completed certain work under a contract which entitled said Brown to receive from said Kochtitzky the sum of $75, and the said Kochtitzky, believing said representation and being deceived thereby, was induced by reason thereof to pay and deliver to said Brown a certain check, of the value of $30, as part payment for said work. At the April term, in the circuit court of said county, the defendant appeared, and waived formal arraignment, and entered his plea of not guilty, whereupon the trial of the cause proceeded.

We shall not undertake to set out in detail the testimony developed upon the trial of this cause. It is conceded by learned counsel for appellant that the testimony of the prosecuting witness tended to establish the charge as embraced in the information. As indicating the nature and character of the proof upon which this cause rests, we quote from the brief of the appellant now before us. They say: "This case depended upon the testimony of two witnesses for its final determination by the jury. One of these witnesses was the prosecuting witness Kochtitzky. The other was the defendant. If the testimony of Kochtitzky was to be believed, the defendant was guilty as charged in the information, and the verdict of the jury was warranted. If, on the other hand, the defendant was to be believed, and if the facts recited by him as a witness were true, then he was entitled to an acquittal at the hands of the jury. The trial of the cause, as is shown by the record, resolved itself into a question of veracity between the prosecuting witness, Kochtitzky, and the defendant, Brown, and the weight to be given to the testimony of each." This commendable frank statement as to the proof in this cause is sufficient to enable us to determine the only legal proposition involved. At the close of the evidence the court instructed the jury, and the cause was submitted to them, and they...