State v. Bryant

• Decision Date: 12 May 1896
• Citation: 134 Mo. 246,35 S.W. 597
• Parties: STATE v. BRYANT.
• Court: Missouri Supreme Court

35 S.W. 597

134 Mo. 246

STATE v. BRYANT.

Supreme Court of Missouri, Division No. 2.

May 12, 1896.

CRIMINAL LAW — INSTRUCTIONS — ALIBI — TESTIMONY OF DEFENDANT — EVIDENCE AS TO CHARACTER — SUFFICIENCY OF EVIDENCE — BURGLARY — POSSESSION OF STOLEN GOODS.

1. In a criminal case, where defendant attempted to show an alibi, an instruction that such defense "is as legitimate and valid as any other defense, * * * nor is the defendant bound to establish this defense beyond a reasonable doubt; and if, from the whole evidence, you have a reasonable doubt of his presence at the commission of the offense, as before explained, you must give him the benefit of that doubt, and acquit," — is sufficiently explicit to show defendant's rights under that defense.

2. Where defendant testified in his own behalf, it was not reversible error to instruct the jury that, in considering his testimony, they should take the fact into consideration that he was the accused party, though such instruction was improper, in that it used the word "should," instead of "may."

3. An instruction that evidence of good character is no excuse for the commission of a crime, but that, in determining whether the accused was guilty, it was proper for the jury to consider such evidence, was properly given.

4. In an indictment for burglary, it was proved that the property was found in defendant's store at the time of his arrest, three days after the crime was committed, though defendant

claimed to have purchased it from his brother. There was some evidence that defendant was one of the burglars, and that the stolen property was seen in his possession early in the morning after the burglary. Held, that it was not error to charge that the recent possession of stolen goods raises the presumption that the person in possession is guilty, throwing upon him the burden of rebutting the presumption, but that such presumption is not conclusive, unless it remains unexplained.

5. Where the evidence, though conflicting, tends to support the verdict, it will not be disturbed on the ground that the evidence is insufficient.

Appeal from circuit court, Lafayette county; John E. Ryland, Judge.

Jerry Bryant was convicted of burglary in the second degree, and of grand larceny, and appealed. Affirmed.

C. P. Craig, Wallace & Childs, and John S. Blackwell, for appellant. R. F. Walker, Atty. Gen., and Wm. Aull, Pros. Atty., for the State.

BURGESS, J.

In May, 1895, defendant was convicted in the criminal court of Lafayette county of burglary in the second degree, and of grand larceny; his punishment for the burglary being fixed at three years' imprisonment in the penitentiary, and for the larceny at two years. From the judgment and sentence he appealed.

The facts are about as follows: On the night of April 11, 1894, the storehouse of John Baucom, situated about three miles west of Lexington, in Lafayette county, Mo., was broken into, and a number of articles taken therefrom, including a lot of tobacco, coffee, and soap. The tobacco taken was of the "Star" and "Sledge" brands. The coffee was Lyons coffee, put up in one-pound packages, and on each package was printed the name of John Baucom, the proprietor of the store. On the next morning, two men appeared at the house of William Cunningham, Sr., a farmer living on Crooked river, about four miles from Hardin, in Ray county, Mo., in a boat, having in their possession some boxes. They traded the boat to said Cunningham for some boards to place on the boxes, and in compensation for his services in taking them and the boxes to Hardin. On the trial, Cunningham, Sr., testified that the two men ate breakfast at his house on the morning of their appearance there; that he rode by the side of defendant from his house to Hardin, and that defendant was one of the men. At the time of the burglary, defendant was engaged in the business of grocer at Kansas City, Kan., some 45 miles distant from the store of Baucom. On Saturday, the 14th day of April, 1894, three days after the burglary, the principal part of the stolen goods were found in the store of defendant; the evidence tending to show that they were put in the store, during the temporary absence of defendant therefrom, by his brother and one Conners, and that, after he found out that they were in the store, he paid his brother for them. Defendant proved a good character for honesty, and introduced evidence which tended strongly to show that he was in Kansas City, Kan., at the time the burglary was committed, and could not possibly have been present at the time of its commission.

Defendant's first insistence is that the court erred in failing to properly and legally instruct the jury on the question of alibi. The instruction in this regard is in accordance with the rule announced in numerous decisions of this court, and free from objection. State v. Taylor, 118 Mo. 153, 24 S. W. 449, and authorities cited.

The instruction with respect to the good character of defendant and circumstantial evidence is also criticised in a general way, but we are unable to see the force of the criticism, and are of the opinion that it is untenable.

Upon the question of recent possession of stolen property by the...