State v. Gates
| Decision Date | 19 November 1895 |
| Citation | 32 S.W. 971,130 Mo. 351 |
| Parties | The State v. Gates, Appellant |
| Court | Missouri Supreme Court |
Appeal from Saline Criminal Court. -- Hon. John E. Ryland, Judge.
Affirmed.
Charles T. Noland and John Rich for appellant.
R. F Walker, attorney general, for the state.
(1) The record recites that the motion in arrest of judgment was not offered until more than four days after judgment, and, this being true, the court very properly refused to entertain it. R. S. 1889, sec. 4273. (2) The testimony of Burns that defendant said, soon after he was arrested, that "he wanted to pay three prices for the pants; he wanted to know what they were worth and he was willing to pay three prices for them" was admissible for the purpose of showing that defendant admitted the ownership to be in Miller & Burns. The state objected to a question asked witness Maupin, whether or not it would have been possible for Gates to have given or gotten a pair of pants and put them in the room from the time he and Gates left it until he, Maupin, returned; this was a question for the jury to determine from all the facts and circumstances; that is, whether the defendant had stolen the pants and put them in his room. The court very properly sustained the objection to this question for another reason that was that it asked simply for the conclusion of the witness, which was of course improper. The state again objected as to whether or not there was any investigation at the Knights of Pythias lodge on the twenty-fourth of October as to the reputation of the defendant. This was entirely immaterial, and was properly excluded. (3) Only such instructions as referred to the crime of which defendant was convicted, that of petit larceny, should be subject to review here. It is immaterial, so far as this appeal is concerned, whether the instructions defining and relating to the major offense, that of larceny from a dwelling were correct or not; whether correct or incorrect, the defendant could not have been prejudiced thereby, for the jury have found him not guilty of that offense. State v. Nocton, 121 Mo. 551. (4) The instructions given for the state properly declared the law and those refused for defendant were either erroneous or included in those given. Defendant also complains that the verdict is not supported by the testimony. This allegation is without merit, for the testimony overwhelmingly establishes the guilt of the defendant. It has been repeatedly held that this court will not interfere, unless it affirmatively appears that there is a total failure of proof. State v. Fisher, 124 Mo. 460; State v. Schaeffer, 116 Mo. 96. Where an inference of guilt may be reasonably drawn from the testimony, a verdict will not be set aside upon appeal because of the insufficiency of the evidence. State v. Sanford, 124 Mo. 484; State v. Banks, 118 Mo 107. Nor will a verdict be set aside upon appeal, upon the ground that it is against the weight of the evidence, unless there be a total failure of proof to support it. State v. Alfray, 124 Mo. 393; State v. Richardson, 117 Mo. 585; State v. Moxley, 115 Mo. 644.
Indicted under the provisions of section 3537, Revised Statutes, 1889, for the larceny of a pair of pants in a dwelling house, the trial of defendant resulted in a verdict of guilty of petit larceny, his punishment being assessed at thirty days in jail and a fine of $ 50; from judgment on this verdict he appeals.
It is shown by the testimony that J. J. Miller and E. G. Burns, as a partnership, were engaged as dealers in clothing and furnishing goods in the city of Slater, in Saline county, Missouri, during the month of October, 1892, and on the nineteenth day of October, Charles Gates made an effort to buy a certain pair of pants from clerk Blakemore, who was in the employ of Miller & Burns; that he was making an effort to trade Blakemore a bond issued by one of the recent bond investment companies in this state; that he tried the pants on, which were found to be a little too long, but it was agreed that they could be shortened; they were folded up and laid back upon the safe and soon thereafter missed; that about ten days thereafter defendant was seen wearing them on the streets of Slater. When he was arrested he offered to pay Miller & Burns for the pants, but told the constable that he had ordered them from a drummer in the depot and that they had been shipped to him by express. It was also shown that he took the pants to a tailor for the purpose of having them shortened. Mayor Harvey testified that on the day of the arrest the defendant told him that he was satisfied the pants belonged to Miller & Burns.
The defendant testified in his own behalf, admitted negotiating for the pants at Miller & Burns' with Blakemore. In accounting for the possession of the pants, he contended that he had written a life insurance policy for a drummer at Moberly, whose name and address he could not recollect, nor did he keep a memorandum of the name, in part payment of which the drummer was to send him a pair of pants that no description of the pants was mentioned nor sample taken, nor receipt given for the price paid; that on the twenty-fourth day of October he met one Maupin, who was associated with him in the bond investment and life insurance business, on the streets of Slater, and that Maupin told him that his express had come; that he went to his room and there found two packages, one containing a pair of pants and one some underwear, the latter having been sent by his wife from Moberly; that it was then his opinion that the former package was the pants sent him by the drummer; that he put the pants on and wore them as his own. He admits in his testimony that he offered to pay Miller & Burns for...
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