State v. Honig
| Citation | 78 Mo. 249 |
| Parties | THE STATE, Appellant, v. HONIG. |
| Decision Date | 30 April 1883 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Court of Appeals.
AFFIRMED.
D. H. McIntyre, Attorney General, for the State.
Joseph G. Lodge for respondent.
The respondent was indicted and convicted for receiving stolen property. The following is the indictment:
“The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly empanelled, sworn and charged, upon their oath present, that Daniel A. Honig, late of the city of St. Louis, on the 20th day of October, in the year of our Lord 1877, at the city of St. Louis aforesaid, with force and arms, $100 in good and lawful money of the United States of America, of the value of $100, of the goods, property and chattels of Thomas B. Hale, before then feloniously stolen, taken and carried away from another, feloniously did receive and have, he, the said Daniel A. Honig, then and there well knowing the said property, goods and chattels to have been so feloniously stolen, taken and carried away as aforesaid, against the peace and dignity of the State, and contrary to the form of the statute in such case made and provided.”
The facts in brief are, that the defendant, Honig, had a livery stable in St. Louis and had an organized band of swindlers and thieves in his employ, of which he was chief. Their principal prey was unsuspecting, simple-minded strangers. On this occasion one Hale, from Arkansas, fell into their hands. One of them named Baker told Hale that he had been trying all day to buy a span of horses from one Zumbunsen, said to be a “Dutchman,” near by, who feigned to be unable to speak English. Honig was present when Baker told Hale he would give him $10 if he would make the purchase for him. The horses were in fact Honig's, and Zumbunsen was in Honig's employ and particeps criminis in the transaction. Hale was persuaded to buy the horses at $150 upon the understanding that Baker would return the money and take the horses. Zumbunsen and Hale went into defendant's office in the stable to have defendant's clerk make out the bill of sale and to consummate the purchase. Baker and Honig were at or near the door and manifestly were cognizant of and manipulating the swindle. Baker had bank bills in his hands and assured Hale he would hand the money over to him as soon as he accomplished the sale. Hale had only $100 and put that down on the desk. He then turned to Baker a few feet off to ascertain his name to put in the bill of sale. On Baker's suggestion that the bill of sale must be made out in Hale's name, the latter's suspicions of fraud were excited, and he turned to get his money. But when he laid the money down on the desk, and this colloquy occurred, Honig appeared at the desk, and the clerk pushed the money over to him and he took it. When Hale turned to get his money it was gone, and he was unable to learn who had it. Honig then told Hale he could have the horses by paying the remaining $50. This of course was declined, as he did not intend to buy the horses for himself and had not in fact, voluntarily parted with his money.
On this state of the evidence the defendant asked the court to instruct the jury to acquit as the evidence did not sustain the indictment, which the court refused.
The respondent did not introduce any testimony on his behalf, and the above was in substance all the evidence in the case.
The court, of its own motion, among others, gave the following instruction to the jury:
“If, from the evidence, you believe and find that the money mentioned in the indictment was by some one, other than the defendant, actually, feloniously stolen, taken and carried away from Thomas B. Hale, with the intent, on the part of the thief, actually to convert it to his own use and make it his property, without the consent of the true owner of said money, that said money was the property of said Hale, and was of the value of $20 or more; and after it had, by some one other than the defendant, been thus stolen, taken and carried away, the defendant did feloniously take and receive it into his possession, and at the time he did so he knew it to be stolen money, you will find him guilty.” To the giving of this instruction respondent then and there excepted.
After the court had instructed the jury as to the law, the case was not submitted to the jury without argument; but on the contrary, an hour was asked and allowed to each side to argue the case. Mr. E. A. Noonan, assistant circuit attorney, then arose on behalf of the State, and said: This was all that was said by any one representing the State in opening the argument. Counsel for defendant then and there took exception to the refusal of the State to open the case, as required by law, in the following language:
Circuit Attorney La Due.--“We are willing to risk it.”
The Court.--“I will not require the State to open the case further.”
The jury returned a verdict of guilty, and assessed the punishment at three years in the penitentiary. On appeal to the court of appeals the judgment of the court below was reversed and the cause remanded. Thereupon the State brings the case here by appeal.
As this defendant so justly deserved to be punished for his criminal part in this transaction, it is unfortunate to the public that justice should fail through an improper indictment. But it is of more general importance that one criminal should escape than that the safeguards of legal forms and constituted methods of legal procedure should be broken down and disregarded in his trial.
It is objected to the indictment that it does not give the name of the person from whom the property was stolen. The indictment was evidently carelessly drawn. Its language is “$100 of the goods, property and chattels of Thos. B. Hale, before then feloniously stolen, taken and carried away from another.” It is not apparent that this is a “defect or imperfection” which tended “to the prejudice of the substantial rights of the defendant upon the merits,” and the objection is not well taken after verdict.
The court of appeals held in this case, (9...
To continue reading
Request your trial
-
State v. McDonald
...in the theft, the actual captor of the property, it is illogical and contradictory to say he has received it from another. State v. Honig, 78 Mo. 249 (1883). A second reason for holding that the thief cannot receive stolen goods from himself is that his action, capturing the goods, is alrea......
-
The State v. Westlake
...court or governed by instructions; but the court should have permitted a statement to be made to the jury. R. S. 1899, sec. 2627; State v. Honig, 78 Mo. 249; State v. Jackson, 105 Mo. 196; Thompson on sec. 933. (2) It was not competent for the prosecuting attorney to cross-examine the defen......
-
State v. Taylor
...prosecuting witness, and neither being absent or sick. R. S. 1879, secs. 513, 518, 519, 522 and 1908; County v. Clay, 4 Mo. 562; State v. Honig, 78 Mo. 249. was also error to refuse to require Mr. Jones to be sworn to conduct the prosecution fairly and impartially. Sec. 6, art. 14, Con. 187......
-
State v. Webb
...at the same time be a principal in the larceny and in the legal sense a receiver of stolen property' was acknowledged in State v. Honig, 78 Mo. 249, 252--53 (1883), wherein the court explained that if one 'is a principal actor in the theft--the actual captor of the property, it is illogical......