State v. Conway

CourtUnited States State Supreme Court of Missouri
Writing for the CourtKennish
Citation145 S.W. 441
Decision Date21 March 1912
PartiesSTATE v. CONWAY.
145 S.W. 441
STATE
v.
CONWAY.
Supreme Court of Missouri. Division No. 2.
March 21, 1912.

1. CRIMINAL LAW (§ 628) — ENDORSEMENT OF WITNESS — EFFECT OF FAILURE.

A witness whose name is not indorsed on the indictment or information may be permitted to testify for the state under Rev. St. 1909, § 5097, requiring the names of the material witnesses to be indorsed on the indictment providing that other witnesses may be subpœnaed by the state, but no continuance shall be granted because of absent witnesses not indorsed on the indictment, in absence of affidavit of a good cause for the continuance.

2. CRIMINAL LAW (§ 508) — COMPETENCY OF WITNESSES — PERSONS JOINTLY CHARGED.

After the case was nol. prossed as to one jointly charged with accused, he became a competent witness against accused, Rev. St. 1909, § 5241, providing that, when two or more are jointly prosecuted, the court may direct any defendant to be discharged at any time before the defense is taken up that he may be a witness for the state.

3. BURGLARY (§ 45) — JURY QUESTION.

Evidence in a prosecution for burglary and larceny held to take the case to the jury making it proper to deny an instruction in the nature of a demurrer to the evidence.

4. CRIMINAL LAW (§ 1122) — BILL OF EXCEPTIONS — INSTRUCTIONS.

Error in refusing instructions not contained in the bill of exceptions will not be reviewed.

[145 S.W. 442]

5. CRIMINAL LAW (§ 376) — CHARACTER EVIDENCE — ADMISSIBILITY.

In a prosecution for burglary and larceny, accused, to account for $10 in his possession, called a witness, who testified that accused had been employed in C. for three or four years before the burglary, and he was asked on cross-examination whether he did not know that accused was in the penitentiary during the time witness said he was in C., and answered, "I don't know whether he was ever in the penitentiary. I hear them say he was," and the court overruled a motion to strike the answer, but afterwards ruled that that part "which he heard will be stricken out and will not be considered by the jury." Held, that it was error to permit the cross-examination as to accused's imprisonment in the penitentiary; he not having offered evidence as to his good character.

6. CRIMINAL LAW (§ 1169) — HARMLESS ERROR — ADMISSION OF EVIDENCE.

The error in admitting evidence as to accused's imprisonment was not cured by the action of the court in striking out what witness had heard, and directing the jury to disregard it.

7. BURGLARY (§ 47) — VERDICT — CONVICTION OF BURGLARY AND LARCENY.

Though charges of burglary and larceny be joined in one indictment pursuant to statute, the jury may convict or acquit of both or either.

8. BURGLARY (§ 46) — INSTRUCTIONS.

Since the jury may convict or acquit of either or both offenses where the indictment joins a burglary and larceny charge, the court in such case should so instruct.

9. CRIMINAL LAW (§ 1038) — PRESENTATION BELOW — REQUESTED INSTRUCTIONS.

Rev. St. 1909, § 5244, provides that "the court may instruct" on any point of law arising in the cause, and section 5245 provides that on the trial of any criminal offense exceptions to a decision may be made as provided by law in civil cases, and section 5231 provides that whether requested or not the court "must" instruct upon all principles of law which are necessary for the jury's information in giving their verdict, and a failure to so instruct in cases of felony shall be good cause for setting aside a verdict of conviction. Held, that in felony cases it was not necessary for accused to request instructions necessary for the jury's information and except for failure to give them, in order to preserve for review the court's action in not instructing, so that a request and exception was not necessary to raise for review the court's failure to instruct that the jury could convict or acquit of either or both of the charges where burglary and larceny were joined in the indictment.

10. CRIMINAL LAW (§ 1056) — INSTRUCTIONS — REQUEST — NECESSITY.

If accused requested an erroneous instruction on a material question, the court's failure to give a correct instruction thereon may be reviewed without an exception thereto.

11. STATUTES (§ 226) — CONSTRUCTION — FOREIGN STATUTES.

The construction placed by the courts of a foreign state on a statute before its adoption in this state will control after its adoption.

12. CRIMINAL LAW (§ 1064) — APPEAL — PRESENTATION BELOW — MOTION FOR NEW TRIAL — FAILURE TO INSTRUCT.

Notwithstanding Rev. St. 1909, § 5231, providing that, whether requested or not, the court must instruct on all questions of law which are necessary for the jury's information in giving their verdict and failure to do so in felony cases shall be ground for a new trial, accused should call the court's attention to the question of law on which it is claimed it failed to give necessary instructions for the jury's information, in order to raise the question for review, but, if satisfied from the record that there has been a failure to instruct upon a question affecting accused's fundamental rights, the appellate court will grant a new trial though the question be first raised on appeal, and hence a new trial will be granted in a prosecution for burglary and larceny for the court's failure to instruct that the jury might convict or acquit on either or both of the offenses, though the only ground of the motion for new trial raising the question merely alleged error "in failing to instruct the jury on the whole law governing the case."

Appeal from Criminal Court, Greene County; Alfred Page, Judge.

Harry Conway was convicted of burglary and larceny, and he appeals. Reversed and remanded.

Talma S. Heffernan, for appellant. The Attorney General, for the State.

KENNISH, J.


Appellant, Harry Conway, Bert Drinkwater, and Will Kennedy were jointly charged by information in the criminal court of Greene county, at the April term, 1910, with the crimes of burglary and larceny, alleged to have been committed April 13, 1910. Appellant applied for and was granted a severance. He was tried, convicted of both burglary and larceny, and his punishment assessed at imprisonment in the penitentiary for a term of seven years for the burglary and three years for the larceny. He appealed to this court, but is not represented here by counsel, nor has he filed a brief.

The corpus delicti of each of the crimes charged was fully proven by undisputed testimony. The building burglarized, and in which the larceny was committed, was a saloon in the city of Springfield. It was shown by the testimony that on the night of April 12, 1910, a sum of between $200 and $300 and a gold watch were deposited in the safe, and that the saloon was closed, and the doors locked at midnight. At 5 o'clock the next morning, it was learned that the saloon had been burglarized, the safe dynamited, and the money and watch stolen. A few days after the burglary Kennedy, co-indictee of appellant, pawned a gold watch in said city,

145 S.W. 443

which was identified as the watch stolen from the saloon. During appellant's trial the prosecuting attorney nol. prossed the case against Kennedy, and thereupon he testified for the state that appellant gave him the watch, and that he pawned it at his request and under his directions. Witness Duke, with whom the watch was pawned, testified that appellant came to him and asked him for more money on a watch, after the watch in question had been pawned, but he further testified that appellant had pawned a silver watch with him, on which he then owed appellant a dollar and a half, and that nothing was said by appellant inconsistent with the theory that he had in mind the silver watch, and was asking for the balance due on it. There was testimony that appellant, shortly after the burglary, went to a saloon and exchanged $10 in silver for a $10 bill, but the witness who testified to that fact said that appellant generally had money, and that there was nothing unusual in seeing him with $10 or $15 in his pocket. That was the only evidence of appellant's possession of the money charged to have been stolen. Appellant interposed a defense of alibi, and in support thereof it was shown that he was under arrest the night of the burglary for the violation of a city ordinance, and was not released by the police until about 2:30 or 3 o'clock in the morning; that the police interviewed appellant's mother, who agreed to pay his fine; and that he was then released. Appellant's mother and sister testified that appellant came home immediately after his released that, after talking awhile, he went to bed in a room adjoining theirs, having removed his shoes and hat in their room, as was his habit; and that he did not leave his room the remainder of the night. The appellant, evidently for the purpose of accounting for the fact that he had $10 in his possession a few days after the burglary was committed, called a witness named Duncan, who testified that appellant was usually employed; that he had been employed in Kansas City for three or four years preceding the date of the offense. The prosecuting attorney, on cross-examination, asked the witness if he did not know that appellant was in the penitentiary during the time the witness had stated he was in Kansas City. The question was objected to, and the objection was overruled; the court stating: "It is competent for the purpose of determining whether this witness knows he was in Kansas City." The witness answered that he did not know how many times he had been in the penitentiary. When further asked if he knew he was in the penitentiary during the time about which he had testified, the witness said: "I don't know whether he was ever in the penitentiary. I hear them say he was." Appellant moved that the answer be stricken out, and the motion was overruled. After the motion was overruled and the ruling excepted to, the court, of its own motion, said: "That part which he heard...

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54 practice notes
  • State v. Chaney, Nos. 48242
    • United States
    • United States State Supreme Court of Missouri
    • September 11, 1961
    ...also State v. Rowe, 324 Mo. 863, 24 S.W.2d 1032, 1038; State v. Miller, Mo.Sup., 292 S.W. 440, 442. In State v. Conway, 241 Mo. 271, 287, 145 S.W. 441, it was said our 1879 statute [now Sec. 546.070(4)] was taken almost verbatim from the laws of Kansas and Kansas cases construing it were re......
  • State v. Denison, No. 38862.
    • United States
    • United States State Supreme Court of Missouri
    • March 6, 1944
    ...case, but the Supreme Court may reverse such a case though the question should be presented there for the first time. State v. Conway, 145 S.W. 441. (10) The verdict was the result of passion and prejudice of the jury due to the fact that the defendant did not take the witness stand to test......
  • State v. Rosegrant, No. 34553.
    • United States
    • United States State Supreme Court of Missouri
    • April 23, 1936
    ...State v. Standly, 132 S.W. 1122; State v. Daubert, 42 Mo. 242; State v. Rowe, 44 S.W. 266; State v. Pace, 192 S.W. 428; State v. Conway, 145 S.W. 441; State v. Frazier, 40 S.W. (2d) 763. (3) The verdict is not responsive to the evidence for the reason that said instruction submits to the ju......
  • State v. Douglas, No. 18061.
    • United States
    • United States State Supreme Court of Missouri
    • May 26, 1914
    ...He makes an earnest appeal for the overruling 167 S.W. 555 of the decision of this court in the case of State v. Conway, 241 Mo. 271, 145 S. W. 441. The only proposition of law announced in the Conway Case about which the writer has any misgivings is expressed in the following "If satisfied......
  • Request a trial to view additional results
54 cases
  • State v. Chaney, Nos. 48242
    • United States
    • United States State Supreme Court of Missouri
    • September 11, 1961
    ...also State v. Rowe, 324 Mo. 863, 24 S.W.2d 1032, 1038; State v. Miller, Mo.Sup., 292 S.W. 440, 442. In State v. Conway, 241 Mo. 271, 287, 145 S.W. 441, it was said our 1879 statute [now Sec. 546.070(4)] was taken almost verbatim from the laws of Kansas and Kansas cases construing it were re......
  • State v. Denison, No. 38862.
    • United States
    • United States State Supreme Court of Missouri
    • March 6, 1944
    ...case, but the Supreme Court may reverse such a case though the question should be presented there for the first time. State v. Conway, 145 S.W. 441. (10) The verdict was the result of passion and prejudice of the jury due to the fact that the defendant did not take the witness stand to test......
  • State v. Rosegrant, No. 34553.
    • United States
    • United States State Supreme Court of Missouri
    • April 23, 1936
    ...State v. Standly, 132 S.W. 1122; State v. Daubert, 42 Mo. 242; State v. Rowe, 44 S.W. 266; State v. Pace, 192 S.W. 428; State v. Conway, 145 S.W. 441; State v. Frazier, 40 S.W. (2d) 763. (3) The verdict is not responsive to the evidence for the reason that said instruction submits to the ju......
  • State v. Douglas, No. 18061.
    • United States
    • United States State Supreme Court of Missouri
    • May 26, 1914
    ...He makes an earnest appeal for the overruling 167 S.W. 555 of the decision of this court in the case of State v. Conway, 241 Mo. 271, 145 S. W. 441. The only proposition of law announced in the Conway Case about which the writer has any misgivings is expressed in the following "If sati......
  • Request a trial to view additional results

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