State v. Buella

• Decision Date: 15 November 1886
• Citation: 1 S.W. 764,89 Mo. 595
• Parties: The State v. Bulla, Appellant
• Court: Missouri Supreme Court

1 S.W. 764

89 Mo. 595

The State v. Bulla, Appellant

Supreme Court of Missouri

November 15, 1886

Appeal from Buchanan Criminal Court. -- Hon. Silas Woodson, Judge.

Reversed.

Ramey & Brown for appellant.

(1) The issue of character raised by the testimony introduced by the defendant, was as to defendant's character for truth and honesty, up to and before the time the offence charged in the indictment was claimed to have been committed, and the court should not have permitted the prosecution to inquire as to defendant's moral character, and to bring that inquiry down to the time of the trial, and, thereby, prove habits of drinking too much, and running after women. 3 Greenleaf's Ev., sec. 25; 1 Greenleaf's Ev., sec. 55; State v Creson, 38 Mo. 373. The state will not be permitted to charge a man with an offence and in that way break his character down and then prove that, since filing the indictment, his character is bad. Hoag v. Cooley, 33 Kas. 387. It cannot be claimed that this testimony was competent for the purpose of discrediting the defendant. It was introduced before the defendant was sworn as a witness and its admission may, in the opinion of the defendant, have rendered it necessary for him to testify. (2) Under section 1918, Revised Statutes, the cross-examination in a criminal case must be confined to matters testified to in defendant's examination in chief. The defendant gave no evidence in his examination in chief; in fact, did not refer in any way to the matters covered by the ten questions asked him in his cross-examination, and all the answers to said questions that defendant was forced to give, were wholly foreign to the matters spoken of by him in his examination in chief. State v. Porter, 75 Mo. 171; State v McGraw, 74 Mo. 573; State v. Turner, 76 Mo. 350; Dunbier v. Day, 12 Neb. 597. (3) Defendant's fourth instruction should have been given. Defendant was charged in the second count of the indictment, with receiving the horse, knowing it to have been stolen. He did not deny having the horse in his possession, and under the law his possession must be regarded as innocent. And possession itself, without evidence tending to show guilty knowledge, could have no tendency to establish his guilt. Durant v. People, 13 Mich. 350; Ray v. Pratt, 4 F. & F. 315; Jupitz v. People, 34 Ill. 516; 2 Bishop Crim. Proc. sec. 989. A presumption of guilty knowledge from the naked fact of possession of a horse cannot arise, unless the connection between possession and guilty knowledge is so general and universal that the law itself can infer the one fact from the existence of the other. 1 Greenleaf Ev., sec. 33. Hundreds of horses are annually stolen in this country, and they are sold and delivered generally to innocent purchasers, who would stand in open-eyed wonder if told that, by a presumption of law, they were felons, so readily do horses pass from hand to hand, that it is the exception when you find a man who has traded at all, through whose hands a stolen horse has not passed, unknown to him; but he has nevertheless been in possession of it. Experience has shown and does continue to show that there is no connection between possession of a stolen horse by a person himself, not the thief, and guilty knowledge; and the law does not presume guilty knowledge from the naked fact of possession, but requires proof of that essential fact. 2 Bishop Cr. Law, sec. 1138, and cases cited; Roscoe's Crim. Ev., 876; Jupitz v. People, supra. And the possession is not even sufficient to corroborate the testimony of the principal felon or an accomplice. Wharton's Crim. Law, sec. 1888, and cases cited.

B. G. Boone, Attorney General, for the state.

There was no error in permitting the state, in the first instance, to introduce evidence that the general moral character of defendant was bad. State v. Grant, 79 Mo. 113; State v. Palmer, 88 Mo. 568. The prosecution did not, in the cross-examination of defendant, violate the prohibitions of section 1918, Revised Statutes. This section expressly provides that he may be contradicted or impeached as any other witness in the case. The testimony of defendant dees not disclose that this cross-examination was extended beyond that in chief. If so, it was as to matters so trivial that it will not justify a reversal. State v. Douglass, 81 Mo. 235. I am not satisfied that reversible error was not committed by the court below in declining, under the evidence and circumstances of this case, to give the defendant's fourth instruction, and, therefore, cannot urge the court to approve its refusal.

OPINION

Norton, J.

The defendant was tried in the criminal court of Buchanan county on an indictment containing two counts, in the first of...