State v. English

• Decision Date: 31 October 1877
• Citation: 67 Mo. 136
• Parties: THE STATE v. ENGLISH, Appellant.
• Court: Missouri Supreme Court

67 Mo. 136

THE STATE

v.ENGLISH, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Cole Circuit Court.--HON. GEORGE W. MILLER, Judge.

Lay & Belch for appellant.

J. L. Smith, Attorney General, for respondent.

There was no error in permitting the witness to state the whereabouts of Moore.

He was indicted as principal, and the defendant as being present, aiding, abetting and assisting him; the evidence clearly shows that Moore committed the larceny; that he and defendant were seen to leave California together, riding horses belonging to defendant, and were seen in the neighborhood of the house where the larceny was committed, and were seen together in the evening of that day in California, and on this evidence the inquiry that naturally would present itself to the mind of an average juror, is, “where is Moore, and why don't the State arrest and prosecute him?” That question would remain unanswered, and however much it might be contrary to their duty, some of the jurors would beyond question be influenced by that fact to acquitting the defendant, not desiring to punish one of the parties to a crime, so long as the other remained unpunished. To obviate this prejudice against the State, it was most certainly proper to prove that it was not within the power of the State to arrest and prosecute Moore. It could not possibly prejudice the defendant; it did not tend to prove defendant's bad character, and the real objection to the same was that it took away from him an argument before the jury to which he was not entitled.

NORTON, J.

At the May term, 1876, of the circuit court of Cole county, the defendant was indicted jointly with one Mack Moore, for grand larceny, and for receiving stolen property, knowing the same to have been stolen.

The first count of the indictment charged that Moore “did feloniously steal, take and carry away thirty-five dollars, one note, one twenty dollar bill, one ten dollar and one five dollar bill, lawful money of the United States, of the value of thirty-five dollars, then and there the property of John Peter Sinish,” and the defendant was present aiding, abetting, assisting and maintaining the said Mack Moore, the felony and larceny to do and to commit,” & c. The second count charged that Joseph English and Mack More on, &c., at, &c., thirty-five dollars, to-wit: one twenty dollar bill, one ten dollar and one five dollar bill, lawful money of the United States of the value of thirty-five dollars, the property of one John Peter Sinish,” therefore stolen, did receive and have in...