State v. Jacobs

• Decision Date: 05 November 1908
• Citation: 113 S.W. 244,133 Mo. App. 182
• Parties: STATE v. JACOBS.
• Court: Missouri Court of Appeals

113 S.W. 244

133 Mo. App. 182

STATE v. JACOBS.

St. Louis Court of Appeals. Missouri.

November 5, 1908.

1. CRIMINAL LAW (§ 364) — EVIDENCE — RES GESTÆ — ACCUSED'S DECLARATIONS.

What accused may have said to a policeman in explaining his possession of stolen property immediately upon being arrested, and understanding that he was accused of the theft, was admissible as part of the res gestæ.

2. CRIMINAL LAW (§ 364) — EVIDENCE — RES GESTÆ — ACCUSED'S DECLARATIONS.

The theory on which res gestæ declarations of accused made contemporaneously with the fact about which they are spoken or upon being first charged with the offense is that, because of their spontaneity, they are at least likely to be true, and, if they are reasonable and consistent with his innocence, they are entitled to considerable weight; but, if considerable time has elapsed after he is informed of the suspicion against him, the declarations are excluded as self-serving.

3. CRIMINAL LAW (§ 306) — EVIDENCE — PRESUMPTIONS.

One inference or presumption cannot be based upon another.

Appeal from St. Louis Court of Criminal Correction; Hiram N. Moore, Judge.

Henry Jacobs was convicted of petit larceny, and he appeals. Reversed and remanded.

Thomas B. Harvey, for appellant. J. D. Dalton, for the State.

NORTONI, J.

The defendant, a keeper of a secondhand store and junkshop, was convicted on a charge of petit larceny, and prosecutes this appeal. The subject of the alleged larceny was a small quantity of molten lead, the property of the Laclede Gaslight Company. The material fact relied upon for conviction was an unexplained possession of the recently stolen property. The defense interposed is to the effect that defendant purchased the lead from a negro; that he took the name and address of the negro, and entered the same in a book kept for the purpose, in accordance with an ordinance of the city of St. Louis requiring as much from keepers of secondhand stores and junkshops. The error complained of on appeal is that the court excluded declarations of defendant as of the res gestæ made in his interest to the police officer at the time of his arrest. The defendant himself sought to testify, and his counsel also sought to elicit from the police officer who made the arrest, that the defendant then stated to the officer the fact with respect to his coming into possession of the lead by purchase from the negro, whose name and address he had entered in a book. The court excluded this evidence both upon cross-examination of the police officer and upon direct examination of the defendant as being self-serving declarations of the accused, and therefore inadmissible. There is certainly no doubt of the rule of evidence to the effect that what the defendant may have said to the police officer in explanation of his possession of the alleged stolen property immediately upon his being arrested, or given to understand that he was accused of the theft on the discovery of the property in his possession, would be admissible as part of the res gestæ. 18 Amer. & Eng. Ency. Law (2d Ed.) 492, 493; State v. Castor, 93 Mo. 242-251, 5 S. W. 906; State v. Ware, 62 Mo. 597-601; 2 Bishop, New Crim. Proced. (4th Ed.) § 746. It is always important, however, in the admission of such evidence, to prevent the defendant's self-serving declarations from coming before the jury. 2 Bishop, New Crim. Proced. (4th Ed.) § 746; Foster v. State, 4 Tex. App. 246.

The theory of the law in receiving in evidence as of the res gestæ declarations of the accused made contemporaneously with and illustrative of the fact about which they are spoken, or upon being first charged with the offense, and before he has had an opportunity to contrive or concoct a story, is that because of their spontaneity they are at least likely to be true. If such declarations are reasonable and consistent with his innocence, they are entitled to very considerable weight in the scale or balance along...