State v. Hughes

• Decision Date: 30 April 1880
• Citation: 71 Mo. 633
• Parties: THE STATE v. HUGHES, Appellant.
• Court: Missouri Supreme Court

71 Mo. 633

THE STATE

v.HUGHES, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Henry Circuit Court.--HON. F. P. WRIGHT, Judge.

REVERSED.

M. A. Fyke for appellant.

J. L. Smith, Attorney-General, for the State.

HOUGH, J.

The defendant and one Stansberry were jointly indicted for a burglary and larceny committed either on the night of Tuesday, September 23rd, or Wednesday, September 24th, 1879. The defense was an alibi. Stansberry was acquitted and Hughes found guilty.

1. VENUE.

The venue as laid was not directly proven, and there is no evidence in the record from which the jury was authorized to infer that the offense charged was committed in Henry county. For this reason alone, the judgment must be reversed and the cause remanded, but as the case must be re-tried, we will briefly notice the other errors alleged.

2. IMPEACHING TESTIMONY.

Mrs. Hughes testified that her husband was at home during the whole of the night of the 23rd and of the 24th. Mrs. Stansberry, wife of the defendant Stansberry, testified that she and her husband were, during the whole of the night of Tuesday the 23rd at the house of a friend, some seven or eight miles from the place where the burglary was committed, and that during the whole of the night of Wednesday the 24th, she and her husband were at the house of the defendant Hughes, and that Hughes was there also. Among the articles identified by the prosecuting witnesses as having been taken, were two smoothing irons, which Mrs. Stansberry testified belonged at the house and had been used by her during the entire summer of 1879. On cross-examination Mrs. Stansberry was asked if she had not stated to one Chapman, at a certain place, in the presence of a certain party, that Hughes had stolen these things; and she denied that she had so stated. The State, in rebuttal, introduced a witness who testified that she had, at the place and in the presence of the party named, stated to Chapman that the irons in question were brought to the house after night, and that she did not know where they came from, and that she believed that Hughes stole the goods. This testimony was objected to as incompetent, and as calculated to prejudice the jury. We think this testimony was properly admitted for the purpose of impeaching the credibility of Mrs. Stansberry; and the jury were informed by the court, at the time, that it was admitted solely for that purpose. It would have been entirely proper for the court, of its own motion, and its duty if so requested, to have instructed the jury that this statement was not of itself any evidence of the guilt of Hughes, and that it could only be considered by them in determining what credit they...