State v. Chappell

• Decision Date: 01 February 1904
• Citation: 179 Mo. 324,78 S.W. 585
• Parties: STATE v. CHAPPELL.
• Court: Missouri Supreme Court

78 S.W. 585

179 Mo. 324

STATE v. CHAPPELL.

Supreme Court of Missouri, Division No. 2.

February 1, 1904.

CRIMINAL LAW — ENTICEMENT — BURGLARY — WITNESSES — DEFENDANT — CREDIBILITY — PREVIOUS CONVICTION—POLICE COURTS—JURISDICTION—INSTRUCTIONS.

1. Where in a prosecution for burglary a witness testified to a conversation had with defendant with respect to the stolen property, it was proper to charge the jury as to the rules governing their consideration of any statements made by defendant.

2. In a prosecution for burglary, an instruction that the jury should consider the evidence which had been introduced that the defendant had been convicted of petit larceny before a police judge for the purpose of discrediting him as a witness, was not objectionable as assuming the fact of former conviction as proven.

3. Where, in a prosecution for burglary, there was no evidence that a witness whom defendant solicited to sell the stolen property had anything to do with the breaking, an instruction that if the scheme to break and take the goods was conceived by such witness and communicated to defendant, and that defendant acted only on the suggestion of the witness, and carried the scheme into execution, and if such witness was a detective, acting under the direction of a

police officer for the purpose of entrapping defendant into the commission of the offense that he might be prosecuted therefor, defendant should be acquitted, was properly refused.

4. Under Rev. St. 1899, § 5798, providing that a city police judge shall be ex officio a justice of the peace within the limits of the city, with jurisdiction as to crimes and misdemeanors, etc., a police judge had jurisdiction to try a person arrested for petit larceny within the city, and to render a judgment convicting him of such offense.

5. In a prosecution for burglary a previous judgment of a city police judge, regular on its face, convicting defendant of petit larceny, was admissible for the purpose of affecting defendant's credibility as a witness.

Appeal from Criminal Court, Greene County; Jas. J. Gideon, Judge.

Jean Chappell was convicted of burglary, and he appeals. Affirmed.

Wear & McGregor and P. T. Allen, for appellant. The Attorney General and Sam B. Jeffries, for respondent.

FOX, J.

Defendant, together with one Harry Conway, was indicted in Greene county upon a charge of feloniously and burglariously breaking into a freight car belonging to the St. Louis & San Francisco Railroad Company, and stealing therefrom 24 pairs of shoes of the value of $50. The venue of the crime is laid in Greene county, and August 3, 1902, stated as the date of its commission. After the indictment was found and defendants arrested, a severance was called for and granted. It appears that soon after Conway was arrested he entered a plea of guilty, and was sentenced to the Reform School, he being at that time but 17 years of age.

The testimony on the part of the state was substantially as follows: On the evening of the 1st day of August, 1902, a freight car, loaded with miscellaneous merchandise from St. Louis, to be delivered at various points beyond and west of Springfield, was attached to a freight train leaving Newburg about 6 o'clock in the afternoon. The doors of this car had been fastened and sealed in the manner usually employed by the railroad company. It arrived in Springfield the following morning, and upon its arrival the doors were still closed and sealed. It was "cut out" on a side track to await the departure of a west-bound local freight train in the afternoon of that day. Some time during the forenoon of the 2d day of August the defendant broke the seal on the door and opened the car, and, together with Conway, removed therefrom four boxes of shoes. These boxes were closely guarded from public view until the following evening. During the day of the 2d of August the defendant went to the secondhand store run by a man by the name of Smith located at 300 East Commercial street, Springfield, and asked W. B. Fleener, one of the employés of the store, if he could not handle some shoes. Fleener told him that the could, and asked where they were. Defendant then asked the witness if he would go with him to get them. Witness said he would, and defendant then said that they had best not go until night. Defendant told witness to hire a rubber-tired buggy, and meet him at Kelly's saloon about 8 o'clock. At the proper time Fleener obtained a buggy, and went to Kelly's saloon, and found the defendant, and drove with him to Robberson avenue, near the railroad. Fleener held the horse a few moments, when the defendant and Conway approached the buggy with two boxes of shoes. They then took them to the secondhand store, where they were placed in the cellar. In the meantime the police officers were notified by Fleener, and defendant and Conway arrested.

On the part of the defendant evidence was introduced for the purpose of contradicting some of the police officers who were introduced by the state. Also testimony tending to show that a detective was connected in some way with inciting the commission of the burglary. Defendant testified in his own behalf, denied the commission of the burglary, and also denied conversations spoken of by a witness for the state.

At the close of the evidence the court instructed the jury, the cause was submitted to them, and they returned a verdict of guilty as charged, assessing the punishment of defendant at five years in the penitentiary. Motions for new trial and in arrest of judgment were filed, and by the court overruled, and the defendant now presents the cause to this court for review upon his appeal.

The instructions complained of and the admission and rejection of evidence offered will be given attention in the course of the opinion.

The errors complained of in the trial of the cause disclosed by the brief of counsel for appellant are: First, that the court erroneously instructed the jury; second, that the court improperly refused instructions prayed for by appellant; third, that the court erroneously admitted the judgment of former conviction of the defendant in the police court of Springfield. Treating the contentions in the order in which they are stated, will say that it is first urged that the court erred in giving the instruction guiding the jury in the consideration of any statements made by the defendant. The form of the instruction is not assailed; hence it will serve no purpose to burden this opinion by inserting it. Appellant does, however, urge that there was no testimony upon which to base it; in other words, it is contended that the testimony...