State v. Donovan

• Decision Date: 08 May 1894
• Citation: 26 S.W. 340,121 Mo. 496
• Parties: The State v. Donovan, Appellant
• Court: Missouri Supreme Court

26 S.W. 340

121 Mo. 496

The State v. Donovan, Appellant

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from St. Louis Criminal Court. -- Hon. H. L. Edmunds, Judge.

Affirmed.

McDonald & Howe for appellant.

(1) The court erred in refusing appellant's instruction in the nature of a demurrer to the evidence at the close of the state's case. (2) The court erred in instructing the jury upon the question of grand larceny as there was no proof that the watch was worth more than $ 3.50. (3) The court erred in its instruction to the jury upon the petit larceny theory in using the word feloniously. (4) The court erred in giving the instruction as to the presumption arising from the possession of stolen property, as there was no evidence that the property in question had been stolen. (5) The court erred in overruling appellant's motion for a new trial. (6) The court erred in overruling appellant's motion in arrest. Flynn v. Wahl, 10 Mo.App. 582; Cantling v Railroad, 54 Mo. 385; Eyerman v. Sheehan, 52 Mo. 221; State v. Rider, 90 Mo. 54; State v Scott, 39 Mo. 424; Bergen v. People, 17 Ill 426; Winslow v. State, 76 Ala. 42; Williamson v. People, 101 Ill. 382; 1 Greenleaf on Evidence, sec. 434; State v. German, 54 Mo. 526; Waddingham v. Hulett, 92 Mo. 528; State v. Warden, 94 Mo. 648.

R. F. Walker, Attorney General, and C. O. Bishop for respondent.

(1) The verdict was sustained by the evidence. One can not read the record without being "convinced to a moral certainty" that the appellant stole the watch in question. This demurrer was rightly overruled. (2) The instructions were in approved form, and covered the whole law of the case; and were as favorable as warranted by the evidence. (3) The record fails to show that any evidence was offered by defendant, and there was none, therefore, excluded by the court. (4) The allegations in the motion for new trial do not prove themselves. State v. Foster, 115 Mo. 448.

OPINION

Gantt, P. J.

The defendant was indicted, tried and convicted, in the St. Louis criminal court, of grand larceny of a gold watch, the property of Mrs. Kate Henry, and from that conviction appeals to this court.

Mrs. Henry was a widow lady, seventy-three years old. She lived with Mrs. Sophia Coleman, at 2916 Pine Street, St. Louis. The watch, which defendant was charged with stealing, had been in her possession thirty years. About a week before it was missed, the defendant repaired Mrs. Henry's sewing machine. She usually kept the watch in a case on her bureau, in her room, where she sewed. On the morning the watch was missed, the defendant was seen, about 10 o'clock, going to her room. The watch was missed about 11:30 that forenoon. Mrs. Henry died suddenly, in her chair, at 5 P. M. that day.

About noon of the same day, defendant came to the shop of one Steinmeyer, a shoemaker, at 1807 Market street (about fourteen blocks distant from 2916 Pine street). Several persons were in there, among them a man named McCowan. Defendant exhibited Mrs. Henry's watch, and asked: "Do any of you gentlemen want to buy a watch?" Steinmeyer asked him how much he wanted for it; defendant said: "I want four dollars." Steinmeyer asked, why don't you pawn it? The watch is worth more than that." Defendant replied: "That is a matter of principle, I never pawn anything, and I never will." Steinmeyer asked: "Now, suppose a body should buy that watch and another comes and claims it?" Defendant replied: "I give you my name and my address. That is a watch I bought my wife for a wedding present, and if you should buy the watch, I should want you to promise me that if I come back again in ten, twelve, fourteen days or a month, I can buy the watch back again for five dollars." Steinmeyer did not care to buy it, but suggested to McCowan that he should buy it. Defendant said: "No, I want to go to Litchfield, Illinois, and that will cost me $ 3.85." Steinmeyer then said: "I will give you $ 3.50 for it," and defendant said: "I will take it; I will borrow thirty-five cents, or walk the rest of the way. I am in a hole here, and I don't want to stay any longer." So the watch was sold to Steinmeyer, the $ 3.50 paid, and defendant went off. He had a valise in his hand at the time. A few minutes afterward, Steinmeyer, fearing it was not all right, took the watch to the police station and reported the circumstances.

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