State v. James
| Decision Date | 06 March 1906 |
| Parties | STATE v. JAMES. |
| Court | Missouri Supreme Court |
On a trial for larceny, the prosecutor identified the goods in the possession of defendant as the goods stolen. There was no testimony contradicting the identification. Held, that the question of the identity of the goods was for the jury.
4. CRIMINAL LAW — OPINION EVIDENCE — IDENTITY OF PROPERTY.
The opinion of a witness as to identity of things is competent when resting on facts within the knowledge of the witness.
5. BURGLARY—POSSESSION OF STOLEN PROPERTY —PRESUMPTIONS.
Where property had been stolen by means of a burglary, and recently thereafter the property is found in the possession of another, the latter is presumed to be the thief and to have used all means necessary to have secured access to and possession of such property, and, if he fails to account for his possession in a manner consistent with his innocence, or to overcome the presumption by direct or circumstantial evidence, a verdict of guilty of larceny and burglary is authorized.
6. SAME—INSTRUCTIONS.
Where, on a trial for burglary and larceny, the evidence showed that accused had in his possession a part of the stolen goods, that he admitted having given to another a part of the property to sell at a pawnshop, that in the pawnshop such property was found, and that accused made contradictory statements as to how he obtained the goods, a charge on the presumption arising from possession of the stolen property was authorized.
7. CRIMINAL LAW — IMPROPER REMARKS OF PROSECUTING ATTORNEY — REVIEW—EXCEPTIONS —PRESERVATION IN BILL OF EXCEPTIONS —NECESSITY.
Improper remarks of the prosecuting attorney in his argument to the jury are not reviewable, unless preserved in the bill of exceptions, though they are assigned as a ground in the motion for a new trial.
8. SAME—APPEAL—HARMLESS ERROR.
Where defendant testified and admitted that he had been in the penitentiary, the error in permitting the state to prove, before defendant testified, that he had been a convict, was not prejudicial.
Appeal from Circuit Court, Jackson County; Jno. W. Wofford, Judge.
George James was convicted of burglary and larceny, and he appeals. Affirmed in part, reversed in part.
This cause comes here upon appeal by the defendant from a judgment of conviction in the criminal court of Jackson county, for burglary and larceny. The information upon which this judgment is predicated, omitting formal parts, was as follows: "Now comes Roland Hughes, prosecuting attorney for the state of Missouri in and for the body of the county of Jackson, and upon the affidavit of Jacob Louis, herewith attached and filed, informs the court that George James and John Richards, whose Christian names in full are unknown to said prosecuting attorney, late of the county aforesaid, on the 25th day of March, 1904, at the county of Jackson, state of aforesaid, did unlawfully, feloniously, and burglariously break into and enter a certain building, No. 806 Independence avenue there situate, the same being a building in which divers goods, wares, merchandise and valuable things were then and there kept for sale and deposited, with the felonious intent the said goods, wares, merchandise and valuable things in the said building then and there being, then and there unlawfully, feloniously, and burglariously to steal, take and carry away; and 16 pairs of shoes of the value of thirty-four dollars, 30 undershirts of the value of nine dollars, 6 drawers of the value of three dollars, 6 drawers, elastic sides, of the value of three dollars, two dozen pairs of socks of the value of three dollars, three dozen handkerchiefs of the value of three dollars and sixty cents, two striped shirts of the value of one dollar, one grip of the value of one dollar, three hats of the value of six dollars, all in the aggregate of the value of sixty-three and 40/100 dollars, of the goods and property of Jacob Louis in said building then and there being found, did then and there unlawfully, feloniously and burglariously steal, take and carry away against the peace and dignity of the state."
On May 25, 1904, a severance was granted defendant and he was put upon trial for the offense charged. We have examined the disclosures of the record and find that the testimony tended to prove substantially the following state of facts: That on the 25th of March, 1904, the defendant, who is a negro, resided with his mother in Kansas City. That the prosecuting witness, Jacob Louis, was the owner and proprietor of a clothing store, situated at No. 806 Independence avenue, in said city, and that in said store various articles of merchandise were stored and kept for sale. That Mr. Louis remained at his store on the evening of the 25th of March till about 11 or 12 o'clock, when he locked the front and back doors and went to his bedroom, which was over his store. The next morning Mr. Louis discovered that some one had cut a hole in the panel of the back door, and then removed the wooden bar which fastened the door. There were two back doors to said store, and in front of this one there were some valises sitting on the floor. These valises had been pushed back, and the door was wide open. On examining his stock, Mr. Louis discovered that 16 pairs of shoes, 24 blue undershirts, 12 pink undershirts, 6 pairs of cream-colored drawers, 36 handkerchiefs, a suit case, 4 hats, some socks, and some striped shirts had been stolen. The aggregate value of said property was about $63.40. The defendant had often been around Mr. Louis' place of business. Mr. Louis at once reported the facts to the police authorities. Officer Phelan, having been detailed to investigate the burglary arrested the defendant and John Richards the next day at Sandy Edwards' saloon. A new suit of underwear was found on defendant, and a new suit of underwear was found on John Richards, both of which were identified by Mr. Louis as having been stolen the night before—the undershirt was too small for defendant. All of the balance of the stolen property was found at the home of defendant's mother that day, except the 16 pairs of shoes. To this police officer defendant admitted that he had given one pair of shoes to a man named Bishop to sell to Levy's pawnshop. In this pawnshop one pair of shoes was found, which was identified by Mr. Louis. Defendant told this officer that he got these various articles from John Richards, and afterwards said that he bought them from a white man. He also stated that he might just as well have gotten a wagon load. The defendant's mother testified that she bought the clothing from a white man, and gave him $1 and something to eat. That she then gave some of the clothes to defendant, and the rest remained at her house till the police searched the house. Defendant's sister testified that she saw a white man leaving home just as she was returning, and that her mother then told her that she had purchased a lot of clothing from that man, and had paid him $1. In his own behalf defendant testified that he was in St. Joseph at the time of the commission of the alleged crime, returning to Kansas City the morning after its commission, and got the clothing from his mother; that he did not steal any of said property, knew nothing of who stole it, and was not even acquainted with John Richards. He also testified that Police Officer Phelan mistreated him and threatened him, forcing him to make the alleged statements testified to by said officer. The officer denied the statements of defendant as to such mistreatment.
At the close of the evidence the court instructed the jury, and the cause was submitted to them, and they returned the following verdict: The instructions complained of will be given due consideration during the course of the opinion. Motions for new trial and in arrest of judgment were timely filed and by the court taken up and overruled. Judgment and sentence was duly entered of record, and from this judgment defendant in due time and form prosecuted his appeal to this court, and the record is now before us for consideration.
Philip D. Clear and W. F. Riggs, for appellant. The Attorney General and N. T. Gentry, for the State.
FOX, J. (after stating the facts).
At the very inception of the consideration of the record in this cause we find that the information upon which this judgment is predicated fails to properly charge the offense of burglary in the second degree. We have reproduced such information, and it is apparent that there is an entire absence of any charge or allegation of ownership of the building, in which it is charged the burglary was committed. The charge is that the defendant did unlawfully, feloniously, and burglariously break into and enter a certain building No. 806 Independence avenue, there situate; but there is no allegation as to the ownership of the building, not even an intimation as to who was in possession of it. The ownership of the building is an essential allegation...
To continue reading
Request your trial