State v. Good

• Citation: 132 Mo. 114,33 S.W. 790
• Parties: STATE v. GOOD.
• Decision Date: 21 January 1896
• Court: United States State Supreme Court of Missouri

33 S.W. 790

132 Mo. 114

STATE v. GOOD.

Supreme Court of Missouri, Division No. 2.

January 21, 1896.

CRIMINAL LAW — CHANGE OF VENUE — ARRAIGNMENT — THEFT — INSTRUCTIONS — REASONABLE DOUBT — CONTINUANCE — AFFIDAVIT.

1. A defendant in a criminal case, by failing when a witness to deny testimony for the prosecution, admits its truth.

2. Rev. St. § 4167, by providing that the "same proceedings shall be had," "in the same manner, and in all respects," in a court to which a change of venue has been had in a criminal case, "as if the same had originated therein," authorizes the arraignment of the defendant in such court.

3. On a trial for theft of cattle, when the fact of their theft is not disputed, and it appears that shortly afterwards they were in defendant's possession, an instruction making such possession a presumption of defendant's guilt which must be rebutted by him, but not "beyond a reasonable doubt," and requiring conviction unless it be rebutted by certain designated kinds of evidence, or by the combined weight of one or more of the kinds of evidence "just mentioned," is proper.

4. An instruction directing acquittal if there is a "reasonable doubt" of defendant's guilt, and that to authorize acquittal the doubt must be a "reasonable one," and also one "fairly deducible from the evidence, considered as a whole," and that "mere possibility" of innocence will not authorize acquittal, is proper.

5. It is proper for the court to orally direct the jury not to consider evidence excluded by the court, since it is not an instruction.

6. Defendant, indicted May 9, 1894, obtained a continuance to the September term, at which he procured a change of venue to a county where the court convened November 12, 1894. On trial December 3d defendant asked for a continuance to obtain witnesses absent from the state. These witnesses, though present at the September term, were not recognized to appear at the trial, and, though only about 12 miles from defendant, subpœnas were not issued till November 15th, and there was no showing that defendant did not know they intended to leave the state. The application did not show that their evidence was material. Held, that the continuance was properly denied.

7. A refusal to grant a continuance to procure the attendance of a sick witness is proper where there are other witnesses to prove the facts which the absent witness is relied on to prove.

8. The allegations in an application for a continuance of what the testimony of an absent witness will be cannot be controverted unless there is fraud, or the object of the application is delay.

9. On a criminal trial, self-serving acts of the defendants are properly excluded.

Appeal from circuit court, Bates county; James H. Lay, Judge.

L. B. Good was convicted of theft, and appeals. Affirmed.

The fifth instruction given was as follows: "The defendant is presumed to be innocent until the contrary is established beyond a reasonable doubt. If, therefore, upon the consideration of all the evidence before you, you entertain a reasonable doubt as to the guilt of the defendant, you must give him the benefit of such a doubt, and find him not guilty. You will observe the doubt to authorize an acquittal on that ground alone must, as is stated to you, be a reasonable one. It must also be one fairly deducible from the evidence considered as a whole. The mere possibility that the defendant may be innocent will not warrant an acquittal on the ground of a reasonable doubt."

B. G. Boone, John H. Lucas, and R. E. Lewis, for appellant. R. F. Walker, Atty. Gen., Morton Jourdan, C. C. Dickinson, P. A. Parks, and W. E. Owens, for respondent.

SHERWOOD, J.

The defendant was indicted in Henry county for stealing a "bunch" of 15 head of cattle, the property of Jacob Showalter. Not desiring to be tried in the county of his residence, where he had lived for over 20 years, defendant secured a change of venue to Bates county, where, upon trial, he was convicted of the crime of which he was accused, and his punishment assessed at two years' imprisonment in the penitentiary.

The testimony, in substance, discloses this state of facts: On the night of the 27th of March, 1894, one Jacob Showalter, a farmer residing near Lewis station, in Henry county, Mo., was the owner of a bunch of cattle of about 42 head. On that night 15 of his cattle, all dehorned, and among which was a black steer and a blue roan steer (the bunch of the tail of the black steer having been cut off), were stolen. About 9 or 10 o'clock that night this bunch of 15 cattle were seen being driven along a lane leading from the feed lot of Showalter. That there was but one man in charge, and he was on horseback. That the cattle were being driven in the direction of Clinton. Later, the same night, this same bunch of cattle were seen passing through one of the streets of Clinton, in the direction of the railroad stock yards, which were in the south part of town, in charge of a very tall man. It is shown by the testimony that the person in charge of the cattle when he got within a block of the stock yards lost his way, and, seeing a light in the house of witness Stone, who resided near the stock yards, he borrowed the services of Stone to assist him in placing the cattle in the pen. Stone positively identified the defendant as the party in custody and in charge of the cattle. It is also shown that Stone was up that night with a sick child, and that, after assisting the defendant in placing the cattle in the Gulf Railroad stock pens, the defendant paid him one dollar for his services. The defendant is shown to have been six feet three inches high, with prominent features, and, once seen, would easily be remembered, and readily identified. It is also shown by the testimony that the defendant came to Clinton on the morning of the 28th from Lewis station, on a freight train, and that he employed Boyles and Royston — both negroes — to aid him in loading the cattle, arranging with Royston very shortly after getting off the train, at the southwest corner of the public square, and about three-fourths of a mile from the stock pen. Witness Boyles testified that the defendant stated to him that he got a man to help him the night before to get the cattle in the stock yards, thus corroborating the testimony of witness Stone; that the defendant said to him that he got in late with the cattle that night. Witness Royston testified that the defendant told him that he gave a man one dollar the night before to show him into the stock yards. The description of the cattle given by these two witnesses corresponds exactly with that given by Showalter, the owner. These cattle were shipped by the defendant to Kansas City over the Gulf Railroad, and sold to the George W. Campbell Commission Company. It is shown by the testimony, at the time these cattle were stolen, that the defendant had no cattle, and was overdrawn at the bank at which he did business, — the Brinkerhoff-Faris Trust & Savings Company, — and was the owner of very little personal property, and had no real estate. His explanation of the possession of these cattle was that he happened down at the stock yards that morning, and bought the cattle from an old man, who claimed to have driven them up from southeast of Clinton, who gave the name of Thomas Crats, an entire stranger; that he bought them for $2.60 per 100, and gave his check for the amount on the Brinkerhoff-Faris bank; although defendant had promised Crats the money, the latter made no objection to receiving the check; that he had seen the party once since the purchase of the cattle, and, though under arrest for larceny himself, took no steps to have him arrested. It is shown that the check was never presented by Crats, but that a certain check, which the defendant identified as the check given Crats, came through the mail, inclosed in an envelope, without any directions as to its proceeds, or disposition thereof, or any instructions whatever to the Kansas City Trust Company at Osceola, which was the correspondent of the Brinkerhoff-Faris bank; that the envelope which contained this check was postmarked at Lowry City, a post office in St. Clair county. It is shown by the testimony of the cashier and assistant cashier that the envelope was either lost or destroyed. It is further shown that prior to the shipping of these cattle the defendant had ordered from the agent of the Gulf Railroad a car for the shipment of cattle on Monday, March 25, 1895; that when he came in on the freight train on Wednesday he induced one Newman, who was on the train with him, to get off at the Weaver Hotel up town; that he stated to Newman that he had business at the Missouri, Kansas & Texas depot. It appears, however, that he went directly to the Gulf depot, and saw Smith, the agent, and told him he had been delayed by high water, and that he had gotten in during the night, which testimony corroborates Stone's, Boyles', and Royston's testimony. It is also shown by the testimony that on March 26th he ordered of the agent, Roberts, of the Missouri, Kansas & Texas Railroad, two cars for the shipment of cattle on the 27th. He failed, however, to use these cars, and in explanation to agent Roberts stated that the cattle had stampeded in St. Clair county, and that there were just enough left of them to ship to Kansas City. It is shown that the defendant went to Kansas City in a caboose; that he laid down, and apparently went to sleep; that he had conversation with several parties who were on the train at the time. To one O. W. Griffith, of Cass county, he stated that the cattle were of his own feeding; that he had still others to ship. Griffith identified the defendant. Rev. J. W. Harwood testified that he was on the train with the defendant; that the defendant told him he had driven the cattle in from the country the night before, and complained that he did not get off as soon as he expected; that he had fed or raised the...