State v. Gordon

• Decision Date: 09 December 1913
• Citation: 161 S.W. 721,253 Mo. 510
• Parties: STATE v. GORDON.
• Court: Missouri Supreme Court

161 S.W. 721

253 Mo. 510

STATE v. GORDON.

Supreme Court of Missouri, Division No. 2.

December 9, 1913.

1. CRIMINAL LAW (§ 369)—EVIDENCE—OTHER OFFENSES.

In a prosecution for larceny from the person, alleged to have been committed by accused in picking prosecutor's pocket in a crowd on a street car, evidence that, while on the back platform of another street car near the place where the theft was supposed to have occurred, and shortly prior to committing it, defendant pushed himself in between witness and his father was admissible as tending to establish defendant's presence in the vicinity of the crime, and was not objectionable as showing defendant's guilt of another offense.

2. CRIMINAL LAW (§ 724)—TRIAL—ARGUMENT OF COUNSEL.

Where, in a prosecution of defendant for larceny from the person, there was evidence that defendant was guilty of larceny, that he was not a resident of St. Louis where the crime was committed, but at the time of its commission had just arrived in that city from Chicago, it was not error for the prosecuting attorney in his argument to refer to defendant as a "foreign thief."

3. CRIMINAL LAW (§ 721)—TRIAL—ARGUMENT OF ATTORNEY—ABSENCE OF WITNESS.

Where, in a prosecution for larceny from the person, a witness who had testified on a prior trial was absent and the record of his testimony had been introduced in evidence, a statement by the prosecuting attorney in argument that such witness was not able to be present, and the state introduced his testimony which was conclusive and not contradicted by any evidence, was not objectionable as a direct reference to the failure of accused to testify in his own behalf.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Sidney Gordon was convicted of grand larceny by stealing from the person, and he appeals. Affirmed.

Defendant was charged with the crime of grand larceny, by stealing from the person, as defined by section 4538, R. S. 1909, amended by Laws of Missouri, 1911, p. 193.

Upon a trial had in the circuit court of the city of St. Louis, defendant was found guilty, and his punishment assessed at three and one-half years in the penitentiary. The state's evidence tends to show the following facts: The alleged crime occurred on October 7, 1912, near the corner of Eighteenth and Market streets, in the city of St. Louis. One, Charles H. Robnett, came into the Union Depot on an early morning train, and, just before getting off the train, examined his pocket book and counted his money, which amounted to $63. He then placed his pocket book, which he says was a black one, crosswise in his left hip pocket, and came through the Union Depot and up to the corner of the above-named streets for the purpose of taking a north-bound Eighteenth street car to his home. While waiting for the car, he felt the pocket book in his pocket, and noticed the time from the depot clock to be 7:35 a. m. In a minute or two, he got upon an Eighteenth street car going north. He boarded the car on the east side of Eighteenth street and just south of Market street and at a point very near a fruit stand conducted by one Bischoff. Just as Robnett attempted to board the car, one Robert Webster "swung in ahead" of him and boarded the car. Robnett followed, and just back of Robnett came the defendant Gordon. Robnett noticed some pushing and jostling on the back platform, and felt the defendant pushing against him, apparently trying to get upon the back platform which was crowded. When the car reached Eighteenth and Olive streets, defendant and said Webster got off of said car, without paying their fare, and they, in company with a third person named Albers, turned east on Olive street. After the car passed Olive street, Mr. Robnett entered the car and took a seat, riding to a point near his house. When Robnett reached his home, it was discovered that his left hip pocket was turned wrong side out and his pocket book and money gone. He reported this fact to the police department, giving them descriptions of the persons on the platform of the car, and about 2 p. m. of that day defendant and Webster and two others were arrested. Defendant was identified by Robnett as being the man who got on the car behind him and pushed against him. Louis Schmidt and son, William, testified that they saw the defendant and a man by the name of Webster board a Market street car, going east, at the corner of Market and Eighteenth streets, about 7:30 on the same morning, and that defendant crowded his way in between the father and son, and then left the car before it had crossed Eighteenth street, and that Webster rode to Seventeenth street before leaving the car. These two witnesses testified that their attention was called to defendant by reason of his shoving and pushing. Jacob C. Bischoff testified that he was in charge of the fruit stand at 18 South Eighteenth street, within a few feet of where prosecuting witness boarded the north-bound Eighteenth street car, and that about 15 minutes after 7 o'clock that morning he noticed defendant standing in front of his fruit stand; and witness asked defendant to stand out of the way so that people could see his fruit; that he noticed defendant get on a street car and, after riding a short distance, get off and come back to the corner and get on a second time and repeat the same action; that his attention was attracted to defendant; that about 7:30 a. m. he noticed defendant get on a north-bound Eighteenth street car, and saw him stand on the first step, holding onto the handrail with his right hand, and taking a black pocket book from the left hip pocket of the man in front of him with his left hand; and that defendant remained on the car as the car passed up the street, and went out of witness' sight. Witness did not know the man whose pocket book was stolen, and said that he was not able to identify him. The witness said that the man whose pocket book was stolen was wearing...