State v. Guild

• Decision Date: 09 May 1899
• Citation: 149 Mo. 370,50 S.W. 909
• Parties: STATE v. GUILD.
• Court: Missouri Supreme Court

50 S.W. 909

149 Mo. 370

STATE v. GUILD.

Supreme Court of Missouri, Division No. 2.

May 9, 1899.

CRIMINAL LAW — ACCOMPLICE — STATE'S EVIDENCE — AGREEMENT NOT TO PROSECUTE — RECEIVING STOLEN GOODS — INDICTMENT — EVIDENCE — POSSESSION — JUSTIFIABLE INFERENCES.

1. An agreement of a state prosecuting officer to discharge a prosecution against an accomplice on his testifying against his principal cannot be enforced, and is no bar to a prosecution.

2. An indictment under Rev. St. 1889, § 3553, for receiving stolen goods, need not allege the thief's name.

3. Defendant accompanied a sheriff to the stairway of his picture gallery, in search of stolen goods, when he slipped out of the building and attempted to escape. He stated to his captor: "I want to go on. That thing, is going to ruin me." Held to be sufficient to show that he knew that recently stolen goods found hidden in his gallery were stolen.

4. Possession of stolen goods is sufficient to raise a presumption of guilt in receiving them with knowledge that they were stolen, where the possessor is not the thief, and fails to satisfactorily explain how he acquired possession.

5. In a prosecution for receiving stolen goods, it appeared that a bag with some 70 pounds of coffee was stolen; also, flour and dry goods. An empty coffee bag, with prosecuting witness' name on it, some flour, and the dry goods were found in defendant's possession. Held that, in the question of value, it could be inferred that the flour was the stolen flour, and that the bag had coffee in when received.

Appeal from circuit court, Dent county; W. N. Evans, Special Judge.

W. C. Guild was convicted of receiving and concealing stolen property, and he appeals Affirmed.

Jamison & Perry, for appellant. The Attorney General and K. B. Stone, for the State.

SHERWOOD, J.

Defendant was indicted for receiving and concealing stolen property; the charging part of the indictment following: "Charge that W. C. Guild on the ____ day of April, 1898, at and in the county of Dent and state of Missouri, did then and there two certain dark-colored overcoats, one small overcoat, one ladies' brown jacket, one ladies' blue jacket, silk lined, one ladies' black jacket, one sack of roasted coffee, one hundred pounds of flour, all of the said property being of the aggregate value of $55.80, of the goods and chattels of the Dent County Mercantile Company, a corporation, then lately before feloniously stolen, taken, and carried away, unlawfully and feloniously did receive and conceal, he, the said W. C. Guild, then and there well knowing the said goods and chattels to have been feloniously stolen, taken, and carried away as aforesaid, against the peace and dignity of the state. J. J. Cope, Prosecuting Attorney." Tried, defendant was convicted, and awarded five years in the penitentiary. This prosecution is grounded on section 3553, Rev. St. 1889. Before the trial began, the defendant filed a plea in abatement to the further prosecution of the charge contained in the indictment, which plea, omitting caption, is the following:

"Defendant states that he is entitled to his discharge from the indictment in this cause for the following reasons: Because the state of Missouri, through her attorney who prosecutes the pleas of the state, promised and agreed to discharge the defendant from said prosecution on the consideration that defendant testify before the grand jury in the case of the state against Sprague, which testimony defendant gave; because said attorney promised to discharge him from said cause if he would testify on the trial of the cause of the state against Sprague, with which agreement defendant complied, and testified. W. C. Guild.

"Subscribed and sworn to before me this 13th day of July, 1898. C. S. Miner, Clerk of the Circuit Court."

Defendant offered to prove the truth of his plea, but this was denied him, and his plea stricken from the files, on the ground that it presented no defense to the charge, whereupon defendant excepted.

1. Touching such matters, Blackstone says: "It hath also been usual for the justices of the peace, by whom any persons charged with felony are committed to jail, to admit some one of their accomplices to become a witness (or, as is generally termed, `king's evidence') against his fellows, upon an implied confidence, which the judges of jail delivery have usually countenanced and adopted, that, if such accomplice makes a full and complete discovery of that and all other felonies to which he is examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted for that or any other previous offense of the same degree." 4 Bl. Comm. 330. Bishop says: "As to the nature of the agreement with the accomplice, doubtless ordinarily the mere fact that he testifies for the government, freely and fully acknowledging his own participation in the offense, implies the common equitable understanding, not amounting to an agreement enforceable at law, that a pardon shall follow. But where the testifying was not with the concurrence of the state's attorney, or arranged for by any other authorized person, or even under the expectation of a pardon, it was held not to have this effect. The substance of the implied or expressed understanding is that the accomplice shall honestly and fairly disclose all he knows, including his own guilt, and even confidential communications to attorneys. Thereupon, if his testimony is corrupt, or if otherwise his disclosures are only partial, he gains nothing, and his confessions may be used against him. If he does his part, his claim to consideration will not be impaired, should the defendant be acquitted. Since he cannot plead his acquired right in bar, if the attorney for the state refuses to recognize it the court can only continue the cause to permit him to apply to the executive for pardon." 1 Bish. New Cr. Proc. § 1164. In this state the executive cannot pardon, etc., until after conviction (Const. art. 5, § 8); and consequently it would be useless for the trial court to continue the cause in order for something to occur which, under our constitution, could not occur. This equitable understanding or implied agreement made with an accomplice is, as is also elsewhere shown, incapable of enforcement; and the accomplice cannot plead such agreement, etc., in bar, nor avail himself of it, because it is merely an equitable title to the mercy of the executive. 3 Rice, Ev. p. 505. This equitable title to pardon in cases of this sort, where a party, without any agreement to that effect, has turned state's evidence, has been recognized from a very early period in English criminal law; and this precedent has been unvaryingly followed by our American courts. An exception to the prevalence of this principle, it seems, occurred in People v. Faulkner (not reported), where the district attorney, moved by the clamor of the multitude, refused to nolle pros. the indictment against the accomplice, and he was imprisoned. "Satisfactory evidence of these facts having been brought to the attention of the attorney general of the United States, and through him to President Harrison, the latter issued an unconditional pardon to the accomplice, `because I am advised that, the United States having used the prisoner against one jointly indicted [his brother], an equitable right to clemency, under the decision of the supreme court, is established. This right, if it can be called such, could not be enforced; but, as it has become a settled rule in criminal...