State v. Court

• Decision Date: 12 February 1910
• Citation: 125 S.W. 451,225 Mo. 609
• Parties: STATE v. COURT.
• Court: Missouri Supreme Court

125 S.W. 451

225 Mo. 609

STATE v. COURT.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

1. LARCENY (§ 13) — ELEMENTS OF OFFENSE — TAKING AGAINST OWNER'S WILL.

There is no larceny without the taking of property against the owner's will.

2. LARCENY (§ 41) — POSSESSION OF STOLEN PROPERTY — PRESUMPTION.

Where recently stolen property is found in another's possession, he is presumed to be the thief, and in absence of rebutting evidence, if he fails to account for his possession of it in a manner consistent with his innocence, such presumption becomes conclusive.

3. LARCENY (§ 55) — EVIDENCE — SUFFICENCY.

Evidence held sufficient to prove larceny of a watch by accused.

4. NAMES (§ 14) — IDENTITY — EVIDENCE.

Identity of name is prima facie evidence of identity of person.

5. CRIMINAL LAW (§ 1202) — PREVIOUS CONVICTION OF CRIME — EVIDENCE — IDENTITY OF PERSON.

Where the record of a prior conviction of defendant for another crime, introduced in evidence, shows the conviction of another person of the same name, in the same city and court wherein the trial is pending, and defendant offered no testimony to rebut such prima facie evidence of identity, his contention that there was no evidence to connect him with defendant in such record is without merit.

6. CRIMINAL LAW (§ 1045) — APPEAL — REVIEW — ARGUMENT OF COUNSEL.

Where there was no ruling of the court below as to a portion of the prosecuting attorney's argument complained of on appeal, and no exception saved to the failure to rule, it is not open for review.

7. CRIMINAL LAW (§ 730) — ARGUMENT OF COUNSEL — ACTION OF COURT.

A verdict will not be set aside on appeal because of a reference in the prosecuting attorney's argument to failure of defendant's wife to testify, where the court at once stopped and rebuked him, and directed the jury to disregard the reference, and cautioned him not to refer to her any more.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Edward Court was convicted of larceny, and he appeals. Affirmed.

Henry Walsh, for appellant. E. W. Major, Atty. Gen., and Jno. M. Atkinson, for the State.

GANTT, P. J.

This is a prosecution by information for the larceny for one gent's open face gold watch, the property of Edward Green, of the value of $75, at the city of St. Louis on October 20, 1907. There was also an allegation in the information of a previous conviction of the defendant of attempted robbery in the first degree, and of a lawful compliance with the said sentence.

The testimony tended to show that the prosecuting witness, Green, was a fireman on the Frisco Railroad, and at times acted as engineer during the summer and fall of 1907; that on Sunday afternoon, October 20, 1907, said Green left his residence at No. 3868 Shaw avenue and went to No. 512 Spruce street, where the defendant was engaged in the sale of liquor. Green first stopped at a restaurant where he was joined by a man by the name of Rose and another party who knew of defendant's place of business. These three went to defendant's place of business about 6:30 o'clock that evening, they were there about 20 minutes, and during that time each took 3 drinks of whisky. On leaving, Green asked the defendant if defendant would admit him to his house again if he returned that evening, and defendant agreed to do so. Green returned alone to this place about 9:15 that night. He bought one drink of whisky and sat down by a table, and in the course of a few minutes the wife of the defendant came in and the following conversation took place. She asked Green if he ordered beer, and he replied, "No; I did not order anything," and she said, "That is all right, this is on the house," and he said, "Very well, I will take a little whisky," and she brought him over about half a glass of whisky and a glass of water, and he drank it, and that is the last he remembered. Green is positive that he had his watch when he went to this house the second time that night and he knew nothing further after taking the second glass of whisky at the insistence of the defendant's wife, until he was ejected from the building about 12 o'clock that night. On reaching the street he seemed to have recovered his consciousness and felt for his watch and missed it, thereupon he went back and took the number of the defendant's place of business, and went to the Fourcourts and notified the police, and returned between 1 and 2 o'clock with the officers. When the police officers and Green reached defendant's house and knocked on the door, defendant's wife came and first refused to admit them. On being informed that the officer would break down the door, they were admitted and found the defendant in bed undressed. The police officer testified that on the 21st of October, 1907, to his best recollection, Sergt. Anton, Officer Gemmer, and himself went to the defendant's house, knocked on the door, "and defendant's wife came to the door and let us in." Defendant was in bed. The sergeant told him to put on his clothes. Defendant said, "What is this pinch for?" The sergeant said, "Never mind; put on your clothes," and again he asked, "What is this pinch for?" and the sergeant then said, "We want that watch you got, belonging to this man." Defendant said, "You got...