State v. Crow
| Decision Date | 12 October 1891 |
| Citation | 17 S.W. 745,107 Mo. 341 |
| Parties | The State v. Crow, Appellant |
| Court | Missouri Supreme Court |
Appeal from Crawford Circuit Court. -- Hon. C. C. Bland, Judge.
Affirmed.
L. B Woodside and J. T. Woodruff for appellant.
(1) There was a fatal variance between the property described in the indictment and the evidence offered in proof thereof. Bouvier's Dict., p. 454; 2 East, P. C. 616; 1 Leach, 105 Kelley's Crim. Law, p. 321, sec. 543, and p. 322, sec 594; 2 Hale, 182; 2 East, P. C. 616. (2) The property should have been described as neat cattle. R. S. 1889, sec. 3535. The motion in arrest of judgment should have been sustained. (3) Evidence that defendant had been charged with selling whiskey without license was improper and prejudicial to defendant. State v. Taylor, 98 Mo. 240; State v. Barnard, 64 Mo. 260. Evidence that defendant had been indicted and tried for stealing cattle prior to this was improper. State v. Reed, 85 Mo. 194; State v. Reavis, 71 Mo. 419. (4) The conduct of the attorney for the state in reading in the hearing of the jury what he claimed was the testimony of John Crow before the grand jury was improper, and he should have been rebuked by the court at the time, and should now receive the condemnation of this court. State v. Thomas, 99 Mo. 235; State v. Mathews, 88 Mo. 121; State v. Trott, 36 Mo.App. 30. (5) The remarks of the prosecuting attorney were improper and constituted reversible error. State v. Young, 99 Mo. 666; State v. Jackson, 95 Mo. 624; State v. Mahley, 68 Mo. 316.
John M. Wood, Attorney General, for the State.
(1) The indictment properly charges the offense of grand larceny. State v. Lawn, 80 Mo. 241, and cases cited. (2) The variance, if any, between the charge and the proof was not material, and does not constitute reversible error. R. S. 1889, sec. 4114; State v. Wammack, 70 Mo. 410; State v. Meyers, 82 Mo. 558, and cases cited; State v. Nelson, 101 Mo. 477; State v. Hill, 65 Mo. 84; State v. Donegan, 34 Mo. 67; State v. Law, supra. (3) A witness who testifies to the good reputation of a defendant may be cross-examined, as to his sources of information, although defendant be thereby shown to be guilty of other crimes. State v. Emery, 76 Mo. 348. It was admissible as impeaching the credibility of the witness. State v. Hughes, 71 Mo. 633. When a witness is called on the question of general character, a liberal cross-examination should be allowed touching his knowledge of credibility. State v. Miller, 71 Mo. 89. On cross-examination the witness may be compelled to answer any question which tends to test his credibility. Muller v. Hospital Ass'n, 73 Mo. 242. The record of conviction is only required to be produced where it proposes to show that the witness brought under investigation has been convicted of some crime; it is not so where the question is asked the witness for the purpose of honestly discrediting him; when asked under such circumstances it is competent. State v. Miller, 100 Mo. 606, and authorities cited. Under all the authorities, the cross-examination was permissible. Wharton, Crim. Evidence [9 Ed.] secs. 474-477, and notes. (4) The court did not err in its ruling on the objections made by the defendant to the manner in which the prosecuting attorney examined John Crow. Schlicker v. Gordon, 19 Mo.App. 484; State v. Matthews, 88 Mo.121. (5) The witness Martin, being possessed of part of the ear and hide in the courtroom, and exhibiting them to the jury and fitting them together, was perfectly admissible, as tending strongly to establish the fact that the animal which had been killed and skinned, and the skin of which was produced in the courtroom, was the one belonging to the prosecuting witness. All the facts and circumstances throwing light on the transaction in a case of larceny are admissible. State v. Gabriel, 88 Mo. 631. (6) The remarks of the prosecuting attorney were warranted by the evidence, and were within the bounds of legitimate argument, and constitute no grounds for a reversal. State v. Zumbunson, 86 Mo. 111; State v. Walker, 98 Mo. 95; State v. Elvins, 101 Mo. 243; State v. McNamara, 100 Mo. 100.
Defendant was indicted, tried and convicted in the circuit court of Crawford county for larceny of one cow, the property of Frank Martin. From the judgment he has appealed to this court.
I. The subject of the larceny was described in the indictment as "certain cattle, to-wit, one cow." A motion was made to quash the indictment for the reason that the description of the property charged to have been stolen was insufficient. We do not think so. The statute makes the stealing of "neat cattle" grand larceny. R. S. 1879, sec. 1307. A cow is included in the class of domestic animals denominated "neat cattle." An indictment describing the property stolen as "certain cattle, to-wit, one steer," was held sufficient. State v. Lawn, 80 Mo. 241. The description in this indictment is equally good, and must be held sufficient.
II. Upon the trial the evidence showed that the animal charged to have been stolen was a two-year-old heifer. It is insisted that the variance between the allegation of "a cow" and the proof of "a heifer" is fatal to the verdict and judgment. There is nothing in the evidence to indicate that defendant was taken by surprise by reason of the introduction of this evidence, or, if there was a variance, that it was prejudicial to his defense, or material to the merits of the case. The circuit court did not find the variance prejudicial or material, and it was cured by the statute. R. S. 1879, sec. 1820; State v. Nelson, 101 Mo. 477, 14 S.W. 718.
III. G. W. Woodruff testified, as a witness in behalf of defendant, that the general reputation of defendant for honesty was good. On cross-examination the witness was asked, and permitted to answer, over defendant's objection, if he had not heard of the defendant being indicted for stealing other cattle, previous to this, and if he had not heard that the defendant had been charged with violating the revenue laws and selling whiskey without license. Witness answered affirmatively to each question, stating that he had also heard that he had been acquitted of the charge of stealing cattle. The rulings of the court in admitting this testimony are assigned as error. The exact question, so far as we are advised, has never been passed upon by this court and merits careful consideration.
That a defendant prosecuted on a criminal charge may, in all cases, introduce evidence of his previous good character is no longer a debatable question in this state, whatever restrictions may be placed upon the rule in other jurisdictions. State v. Alexander, 66 Mo. 148; State v. Howell, 100 Mo. 628, 14 S.W. 4. After the defendant has voluntarily put his character in issue it is competent for the prosecution to meet the issue thus presented by evidence of bad reputation. Whart. Crim. Ev. [9 Ed.] sec. 61; 3 Greenl. Ev., sec. 25. The evidence thus allowed whether given in support or impeachment of the character of the accused must, as a rule, be confined to general reputation and cannot be extended to particular facts. State v. Reed, 85 Mo. 194; State v. Reavis, 71 Mo. 419. If the testimony of this witness had been offered by the state, as original evidence for the purpose of rebutting the evidence of good character previously introduced by defendant, it would have been clearly inadmissible. Defendant was presumed, when he put his general character in issue, to be prepared to defend it, but he could not be held ready to defend other independent acts with which he was not charged. State v. Tabor, 95 Mo. 585, 8 S.W. 744; State v. Goetz, 34 Mo. 85.
The ruling of the court cannot be defended upon the ground that the evidence was admissible for the purpose of rebutting defendant's evidence of good character, but, after careful consideration we are satisfied that it was properly admitted in cross-examination of the witness to determine his credibility and the sources of the information upon which the knowledge of defendant's character was obtained.
When the character of one on trial, charged with a criminal offense, is put in issue, the question becomes more than a mere collateral fact or circumstance in the case; it becomes rather a defense to the prosecution and upon it alone the accused may be acquitted. "Evidence of character is offered to make a doubtful case," and upon a doubtful case the jury should acquit. State v. Alexander, 66 Mo. 148; State v. Howell, 100 Mo. 628, 14 S.W. 4; Heine v. Com., 91 Pa. 145. To break down this defense would become as important as to overcome any other fact in the case and opportunity should be given to apply all the usual tests to determine the credibility and information of the witness called in its support; the question would be, is the evidence proposed to be drawn from the witness, on the cross-examination, relevant to the issue, and not whether it discloses another criminal act of defendant?
When defendant put this witness forward to support his character he subjected him to legitimate cross-examination upon the subject of inquiry and himself to such disaster as might result therefrom. Character is made up of acts and conduct, and evidence in respect to it is, by the rule of law, confined to the testimony of neighbors who, by association, know the general estimate placed upon it. Inquiry as to information of important facts and conduct of a defendant's life would, certainly, be relevant to show the grounds upon which the witness had made his estimate of character. Best on Ev., sec. 261; Ingram v. State, 67 Ala. 67; Com. v. O'Brien, 119 Mass. 342; Rex v. Martin, 6 C. & P. 562.
Reputation, itself, can only be known from hearsay information and the courts...
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