State v. Hale

• Decision Date: 08 May 1900
• Citation: 56 S.W. 881,156 Mo. 102
• Parties: STATE v. HALE et al.
• Court: Missouri Supreme Court

56 S.W. 881

156 Mo. 102

STATE v. HALE et al.

Supreme Court of Missouri, Division No. 2.

May 8, 1900.

CRIMINAL LAW — BURGLARY — TESTIMONY — SILENCE ON ACCUSATION — INFERENCE OF GUILT — ADMISSION — NODDING HEAD — EVIDENCES OF OTHER OFFENSES — CONNECTION WITH OTHER OFFENSE — CONFLICTING EVIDENCE — INSTRUCTION — DISREGARDING TESTIMONY — ALIBI — DEFENSE — BURDEN OF PROOF.

1. On a trial for burglary, it was error to admit testimony that at the preliminary trial the prosecuting witness, while testifying, exhibited to one of the defendants her pocketbook, and said: "Here is the pocketbook I had my money in. Don't you know that is the pocketbook:" — and that such defendant nodded his head; and such error was not cured by an instruction restricting the evidence to such defendant, since no inference of guilt could be drawn from his silence when on trial and not in a position to make a denial, and the nodding of his head was not an admission that the pocketbook was the one in which witness had her money.

2. It was error to require a defendant on a trial for burglary to answer that he had theretofore pleaded guilty to the larceny or stealing of a bee gum, since such offense had no connection whatever with the charge against him.

3. Where the evidence was directly conflicting, it was not error to instruct the jury that, if they believed any witness had willfully testified falsely to any material matter in the case, they should disregard such false testimony.

4. It was not error to instruct the jury that one of the defenses was what is known as an "alibi," since, though it devolved on the state to prove defendants' presence at the commission of the crime, by attempting to prove an alibi defendants assumed the burden of raising a reasonable doubt of such presence, and to such extent an alibi was a defense.

Appeal from circuit court, Polk county; Argus Cox, Judge.

C. F. Hale and R. O. Hale were convicted of burglary, and they appeal. Reversed.

Rechow & Pufahl and B. J. Emerson, for appellants. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

Defendants were indicted in the circuit court of Polk county for burglary in the first degree. Thereafter, at the April term, 1899, of said court, they were put upon their trial, found guilty as charged, and their punishment, respectively, fixed at 10 years' imprisonment in the penitentiary. After unsuccessful motions for new trial and in arrest, defendants appeal.

The facts, briefly stated, are that on the night of October 8, 1898, and for many years prior thereto, Mrs. Martha A. Martin, an aged widow lady, lived comparatively alone upon a farm in said county. She had no one living with her at the date named, except a little girl, a sister-in-law of one of the defendants, who by her permission had gone to the house of one of the defendants to spend the night. About half past 10 or 11 o'clock that night, after Mrs. Martin had retired, two men appeared at the door of her house, and upon the pretext by one of them that her daughter, who lived in the neighborhood, was very ill and had sent for her, requested her to open the door and come with him, — that he brought a horse for her to ride, etc. Mrs. Martin did not believe this story, and, fearing some harm at their hands, refused to open the door, whereupon they forced it open, seized her, choked her, and otherwise abused her; at the same time insisting that she had a large amount of money, which she had received for some stock which she had recently sold, and they intended to have it. She, however, had but a few cents about the house (not exceeding 40), which, through their violence and threats, they forced her to surrender to them. The defendants lived near Mrs. Martin. She had known them since they were small boys, and over 20 years, and testified that she recognized them, at the time they broke into her house and robbed her, as the defendants herein.

The court, at the request of the state, and over defendants' objections, gave instructions Nos. 1 and 2 as asked by the state, which instructions are in words and figures as follows, to wit: "(1) The court instructs the jury that if you believe and find from the evidence, beyond a reasonable doubt, that the defendants, at the county of Polk and state of Missouri, at any time within three years before the finding of this indictment, which was on the 21st day of October, 1898, did forcibly break the outer door of the dwelling house of Martha A. Martin, and enter said building, and at the time of such breaking and entering there was a human being in said building, and that the defendants did break and enter said building with the intent to rob the said Martha A. Martin of any money or property that might be in said building, they will find the defendants guilty as charged in the indictment, and assess their punishment at imprisonment in the penitentiary for a term of not less than ten years. (2) The crime of robbery may be committed by taking the money or property of another from his person or presence, forcibly and against his will, or by violence to his person, or by putting him in fear of some immediate injury to his person." The court of its own motion instructed the jury as follows: "(1) The law presumes the defendants' innocence until the state has proven their guilt beyond a reasonable doubt, and, unless the state has so proven their guilt, you will acquit them. But such a doubt, to authorize an acquittal on that ground alone, should be a substantial doubt of guilt, and not a mere possibility of their innocence. (2) You may find defendants both guilty or both not guilty, or you may find one guilty and the other not guilty, as you shall believe from the evidence the facts to be. (3) The jury are the sole judges of...