State v. Christian

• Decision Date: 09 December 1913
• Citation: 253 Mo. 382,161 S.W. 736
• Parties: STATE v. CHRISTIAN.
• Court: Missouri Supreme Court

161 S.W. 736

253 Mo. 382

STATE v. CHRISTIAN.

Supreme Court of Missouri. Division No. 2.

December 9, 1913.

1. INDICTMENT AND INFORMATION (§ 130)— CHARGING TWO OFFENSES.

An information, charging that accused and another "jointly" committed the crime of grand larceny of a horse, improperly joined therewith a charge that accused alone aided the other to escape with knowledge that the other had alone stolen the same horse; the joinder of such offenses not being authorized by Rev. St. 1909, §§ 4528, 5103, 5104, permitting larceny and embezzlement counts to be joined and the joinder of particular offenses in other cases.

2. INDICTMENT AND INFORMATION (§ 130)— JOINDER OF OFFENSES.

Only such offenses may be joined in the same information as arise out of the same transaction and are so far related that an acquittal or conviction for one would bar a prosecution for the other.

3. INDICTMENT AND INFORMATION (§ 124)— PARTIES DEFENDANT.

There was an improper joinder of parties defendant in an information charging that accused and another jointly stole a horse and also charging that accused alone assisted in the escape of such other after such other had alone stolen the same horse.

4. LARCENY (§ 64)—POSSESSION OF STOLEN PROPERTY—PRESUMPTIONS.

Where the manner of obtaining actual possession of recently stolen property is fully explained by the evidence, and the only issue is the capacity in which accused holds such possession, whether feloniously or innocently, no presumption of guilt arises from the mere fact of possession, so as to authorize an instruction thereon.

5. CRIMINAL LAW (§ 789)—INSTRUCTIONS— REASONABLE DOUBT.

Instructions should in effect require that the reasonable doubt justifying an acquittal shall "arise from a consideration of all the evidence in the case."

6. ESCAPE (§ 10)—PROSECUTIONS—INSUFFICIENCY OF EVIDENCE.

Evidence, in a prosecution for assisting one to escape with knowledge that he had stolen a horse, held not to sustain a conviction.

7. ESCAPE (§ 10)—BURDEN OF PROOF.

In a prosecution for knowingly assisting one who had stolen a horse to escape, the burden was on the state to show that the person who had stolen the horse was in fact trying to escape.

Appeal from Circuit Court, Moniteau County; J. G. Slate, Judge.

Theodore Christian was convicted of assisting in the escape of one who had stolen a horse, and appeals. Reversed and remanded for new trial.

This is a prosecution commenced against the defendant in the circuit court of Moniteau county upon an information which was filed therein on April 26, 1913. Since this information has been attacked by the defendant both by a motion to quash, directed toward the entire information, and by a demurrer to the second count thereof, we deem it necessary, for a full understanding of the points involved, to set the information out in full. Omitting formal parts, it is as follows: "J. B. Gallagher, prosecuting attorney within and for Moniteau county, Mo., upon his information and belief, for an amended information, informs the court that Eddie Scott and Theo. Christian on or about the 4th day of February, 1913, at Moniteau county, Mo., did then and there unlawfully and feloniously steal, take, and carry away one bay mare, then and there being, the personal property of Cornelius Coleman, of the value of $100, against the peace and dignity of the state. J. B. Gallagher, prosecuting attorney aforesaid, upon his information and belief aforesaid, further informs the court that Eddie Scott, on or about the 4th day of February, 1913, at Moniteau county, Mo., did then and there unlawfully and feloniously steal, take, and carry away one bay mare, then and there being, the personal property of Cornelius Coleman, of the value of $100; and the prosecuting attorney aforesaid, upon his information and belief aforesaid, informs the court that Theo. Christian, well knowing the said Eddie Scott to have done and committed the felony and larceny of the bay mare in the manner and form aforesaid, afterwards, to wit, on or about the 5th day of February, 1913, at Moniteau county, Mo him (the said Eddie Scott) did unlawfully and feloniously receive, harbor, aid, and assist with the felonious intent and in order that he (the said Eddie Scott) might then and there make his escape and avoid arrest, trial, conviction, and punishment, he (the said Theo. Christian) then and there not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity, to the said Eddie Scott, against the peace and dignity of the state."

The motion to quash, caption omitted, is as follows: "Comes now the defendant, Theo. Christian, by his attorneys, and moves the court to quash the amended information filed in this cause, for the following reasons: Because there is a misjoinder of parties defendant. Because there is a misjoinder of counts in the information. Because the first and second counts in the information are inconsistent with each other. Because the first count in the information charges both defendants jointly with grand larceny, and the second count charges the defendant, Theo. Christian, alone of the crime of aiding the escape of Eddie Scott. Because two and distinct crimes created by different and distinct statutes are united in the same information. Because the information does not charge any crime."

The above motion to quash being considered by the court and overruled, exceptions were duly and properly saved. Thereafter a demurrer to the second count of the information was filed. This demurrer was in the usual form and substantially charged that the second count of the information was not sufficient to make out or charge against the defendant any offense against the law of the state. This demurrer was overruled by the court and exceptions thereto also properly preserved. The case coming on for trial on May 17, 1913, the trial jury by its verdict found defendant guilty as charged in the second count of the information and assessed his punishment at imprisonment for a term of three years in the penitentiary. No finding whatever was made by the jury upon the charge contained in the first count; the jury passing it over in silence.

The court instructed, among other things, that, although both counts were submitted to them for their finding, they must not convict on both; that they might convict him on the first count and acquit him on the second, or vice versa, or they might acquit him on both counts. The court also gave an instruction upon the recent possession of stolen property, predicated, without doubt, upon the charge contained in the first count of the information. This instruction is in the usual form, and the contents thereof are not attacked. The point made is that no such instruction upon the facts should have been given.

Upon the burden of proof, the presumption of innocence, and reasonable doubt, the court gave the following instruction: "The law presumes the defendant innocent until the state has proven his guilt beyond a reasonable doubt; unless the state has so proven his guilt, you should acquit him; but such a doubt, to authorize an acquittal on that ground alone, should be a substantial doubt of guilt and not a mere possibility of his innocence." The court was asked by defendant to instruct upon circumstantial evidence, but this request was refused.

The facts as to the larceny of the mare, since defendant was not convicted of such larceny, need not be set out here at length. Suffice it to say the proof shows that appellant's codefendant, Eddie Scott, stole the mare from one Cornelius Coleman, who resided some 20 miles from the town of California, in Moniteau county. This theft by Scott was committed on February 4, 1913. Scott appeared riding the mare into California on February 5, 1913. His story as to the connection of defendant Christian (hereinafter called defendant simply) with the stealing of the mare is that defendant appeared at the farm of said Coleman on February 3, 1913, during the absence of the latter, and hired said Scott, for the promise of the sum of $15, to ride the mare into California; that on the 4th day of February defendant returned and assisted Scott to catch and bridle the stolen mare, and that Scott and defendant thereupon alternately rode said mare until they arrived in the vicinity of the town of California, when, pursuant to instructions from defendant, Scott stopped and stayed all night with one Kennedy, but defendant continued on back to his home in California. According to Scott, all that the latter did in connection with the theft of the mare was done pursuant to defendant's instructions. Upon reaching California on the morning of the 5th of February, Scott rode the mare up to a livery stable belonging to one Orr and tied her first in the barn and latterly upon the street; he himself going into the barn to warm.

At this point many other witnesses come into the story. Their testimony is that Scott was introduced to defendant and that he became active in assisting Scott to make a sale of the stolen mare, which was very late in the day consummated, by selling her to one Messerli for the sum of $45. This sum was paid to Scott by Messerli by a check, which check was made out in the name of Scott. Defendant, who admits that he was to get $10 for helping Scott sell the mare, says that the sole connection with or knowledge of either Scott or the mare arose when he was made acquainted with Scott at Orr's livery stable; that he there saw Scott for the first time in life. Scott, on the other hand, swears that all that he said and did about the theft of the mare and the sale of her was done under the instructions of defendant that he (Scott) was and is wholly innocent; and that he was doing what he did in bringing the mare to California and in selling her in order to earn the sum of $15 promised him by defendant for that service. After the cashing of the check...