State v. Daubert

• Decision Date: 31 March 1868
• Parties: STATE OF MISSOURI, Respondent, v. HENRY DAUBERT, Appellant.
• Court: Missouri Supreme Court

42 Mo. 242

STATE OF MISSOURI, Respondent,

v.HENRY DAUBERT, Appellant.

Supreme Court of Missouri.

March Term, 1868.

Appeal from St. Louis Criminal Court.

Hudgens, and Woerner & Kehr, for appellant.

I. The court erred in not compelling the circuit attorney to elect between the two counts in the indictment. The power is within the discretion of the court. (1 Chit. Cr. L. 248-9; 1 Arch. Cr. Pl. 93-1.) The Supreme Court will not reverse a cause for the exercise of such discretion, “unless in a case where the abuse is most obvious and manifest.” (State v. Jackson, 17 Mo. 546.) It was manifest error in the court to permit the introduction of evidence to prove larceny, by proving distinct acts comprehended in other indictments pending at the same time, under color of proving, under the second count, defendant's knowledge that the goods received were stolen goods.

II. The introduction of testimony concerning other alleged felonies was erroneous. The rule that, upon an indictment for receiving stolen goods, evidence may be given of different receipts of goods stolen from the same person, in order to show guilty knowledge, does not comprehend evidence of different acts of stealing (1 Mood. 149; 1 Arch. Cr. Pl. 477, n. 2); more especially if such acts of stealing form the subject of distinct indictments. (State v. Wolff, 15 Mo. 169; State v. Goetz & Martin, 34 Mo. 85; Rex v. Smith, 2 Car. & Payne, 633; Rex v. Oddy, 6 Brit. Cr. Cas. 266; Barton v. The State, 18 Ohio, 223; Walker v. The Commonwealth, 1 Leigh, 574.)

III. The court erred in refusing to instruct the jury for defendant that they ought to acquit. The testimony, if all true, does not prove the commission of larceny as charged in the indictment, nor of receiving stolen property, knowing it to be stolen. (3 Greenl. on Ev. § 161; State v. Smith, 37 Mo. 68; 19 Me. 225; 39 Mo. 426, 535.)

C. P. Johnson, Circuit Attorney, for respondent.

I. After the election of count in the indictment, by the circuit attorney, there was no misjoinder of offenses. (1 Arch Cr. Pl. 93-1; 1 Chit. Cr. L. 248-9; Whart. Cr. L. 203.) Whether the prosecutor shall elect is a matter left to the discretion of the court, and the Supreme Court will not reverse for a mistaken exercise of this power, unless in a case where the abuse is most obvious and manifest. (State v. Jackson 17 Mo. 546.) The court should compel the prosecutor to elect only when it is apparent that the charges are actually distinct and may confound the prisoner or distract the attention of the jury. (1 Chit. Cr. L. 248-9; 1 Arch. Cr. Pl. 93-1; Whart. Cr. L. 667; State v. Smith, 37 Mo. 59; State v. jenning, 18 Mo. 435.)

II. On an indictment for receiving stolen goods, knowing the same to have been stolen, in order to show a guilty knowledge, other instances of receiving such goods may be proved, even though they be the subject of other indictments, antecedent to the receiving in question. (Whart. Cr. L. 677; 2 Brit. Cr. Cas.; Rex v. Dunn, 1 Mood. 146; Rex v. Smith, 2 Car. & Payne, 633; State v. Goetz, 34 Mo. 85; 2 Russell, 215; Haskens v. People, 16 N. Y. 344.)

WAGNER, Judge, delivered the opinion of the court.

Henry Daubert and Louisa Daubert were arraigned on an indictment in the St. Louis Criminal Court. The indictment contained two counts. The first count charged the defendants jointly with larceny, in taking and carrying away certain goods, the property of one Charles E. Barney. The second count charged the defendants with receiving the same goods, knowing them to be stolen. When the case was called for trial, the counsel for the defendants moved the court to compel the attorney prosecuting for the State to elect on which count he would proceed. This motion was by the court overruled, and the defendants excepted. The practice is now well settled that a motion to compel an election is addressed to the sound discretion of the court trying the case, and this court will not interfere with that discretion unless it is apparent that it has been exercised oppressively or to the manifest injury of the accused. (State v. Jackson, 17 Mo. 544; State v. Leonard, 22 Mo. 449; State v. Gray, 37 Mo. 463.) Where the offense charged in the second count is of the nature of a corollary to the original felony, as in larceny and the receiving of stolen goods, a joinder is good; and whenever there is a legal joinder, the court may exercise its discretion as to an election. There is no such obvious injustice exhibited in the present case as to enable us to say that there was an abuse of a sound discretion. The defendants were jointly put upon their trial, and, after all the testimony was delivered to the jury, the prosecuting attorney entered a nolle prosequi as to Henry Daubert on the first count, and as to Louisa Daubert on the second count. The counsel for the defendants then moved to quash the indictment, but the motion was overruled.

The cause was then submitted to the jury, and they failed to agree on a verdict in the case of Louisa Daubert, but found Henry guilty, and assessed his punishment at two years' imprisonment in the penitentiary. After the usual motions for a new trial and in arrest of judgment being made and decided adversely to the defendant, the case comes here for revision. The proceeding is anomalous, and no precedent has been found supporting the action of the Criminal Court.

As a general rule, where the offenses are several, distinct, and independent, there can be no joinder. The action of the circuit attorney, in entering of record a nolle prosequi against Louisa on the second count, and Henry on the first count, changed the whole scope, tenor, and meaning of the indictment. It then, in effect, amounted to an indictment charging two several offenses against distinct defendants, who had no necessary connection with each other.

The count against Louisa, for larceny, was a substantive charge; the count against Henry, for receiving stolen goods, was another distinct charge or offense. It may, with entire propriety, be said that...