State v. King

• Decision Date: 19 May 1903
• Citation: 174 Mo. 647,74 S.W. 627
• Parties: STATE v. KING.
• Court: Missouri Supreme Court

74 S.W. 627

174 Mo. 647

STATE v. KING.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

BURGLARY—EVIDENCE—SUFFICIENCY — PROSECUTING ATTORNEY — REMARKS — JUROR — EXAMINATION ON VOIR DIRE.

1. Where a juror, on his voir dire, stated that he had heard a part of the testimony given the day before on the trial of one jointly indicted for the burglary and larceny for which defendant was on trial, the court erred in not permitting defendant to ask the juror as to his having formed an opinion concerning the facts testified to.

2. Where, on a prosecution for burglary, the state wholly failed to prove that defendant had been a convict, the unwarranted remark of the prosecuting attorney, in his closing address to the jury, in referring to defendant as an ex-convict, should have been condemned by the court in sufficiently strong language to have destroyed its injurious effect, and to merely say that the remark was improper was not sufficient.

3. Evidence in a prosecution for burglary examined, and held insufficient to support a verdict of guilty.

Appeal from Criminal Court, Jackson County; Jno. W. Wofford, Judge.

John B. King was convicted of burglary, and appeals. Reversed.

Phil D. Clear, for appellant. The Attorney General and C. D. Corum, for the State.

FOX, J.

On the 27th day of March, 1902, the prosecuting attorney of Jackson county, Mo., filed an information in open court charging the defendant, Charles Golden, and Raymond Burns with the offense of burglary and larceny. It was alleged that on the 5th day of January, 1902, the defendants broke into and entered a tailor shop of one Joseph Topping, and that they stole four pairs of pants and one coat which were found in said shop, and which were in the custody of the said Topping. The defendants were duly arraigned, and on the application of defendant Burns a severance was granted, and the state elected to first try the defendant Burns. He was tried and convicted. Afterwards, upon a trial had upon an issue joined between the state and this appellant, John B. King, he was found guilty, and sentenced to imprisonment in the penitentiary for a term of six years. After having his motion for new trial overruled, he duly appealed from the judgment of conviction. It is conceded by both the state and defendant that the body of the crime—the burglary and larceny—was fully established by the evidence.

The state in this case relied chiefly upon the testimony of Burns to support the verdict against this defendant. It must be remembered that Burns, the principal witness for the state, was jointly indicted with the defendant in this cause, and was tried the day before this case was tried, and convicted. That part of Burns' testimony which undertakes directly to connect this defendant with the burglary and larceny charged is as follows: "Q. When did you see King and Golden next? A. I seen them Sunday evening—Sunday evening about 10:30 or 11 o'clock. Q. Where? A. At the Cosy Restaurant. Q. Where is that? A. That is between Main—or between Walnut and Grand avenue on Thirteenth street. Q. How near is that to the southwest corner of Thirteenth and Main? A. I should judge, about a block and a half. Q. What did you do there in the restaurant? A. Why, I was in there eating lunch when those two gentlemen came in. Q. When King and Golden came in? A. Yes, sir. Q. Did you meet them outside afterwards? A. Yes, sir. Q. Where did you go? A. We went to the corner of Grand avenue and Thirteenth street, and had a couple drinks there, and from there we went to Thirteenth and Main street. Q. What corner? A. Why, it is the south—the southwest corner. Q. Southwest corner of Thirteenth and Main? A. Yes, sir. Q. Is there a saloon there? A. Yes, sir. Q. How near is that to Topping's tailoring shop—to 3 West Thirteenth street? A. That would be about four or five doors, I would judge. Q. How long did you stay there in that saloon? A. Probably twenty-five or thirty minutes. Q. What time did you get out from there? A. Well, I should judge, right close about 12 o'clock. Q. Well, now, after you came out of the saloon I will ask you to tell the jury whether this defendant, King, and Golden at that time asked you to go in with them and burglarize this store? A. Why, they spoke about it; yes, sir. Q. What did they say? A. Well, they wanted me to go—wanted to know if I wanted to go into some tailor shop. I didn't know at the time where this tailor shop was at. They wanted to know if I wanted to go in and get some clothes, and I told them no, I did not. We had a few words about it, and I told them I wouldn't have nothing to do with it, and they said they was going anyway. Q. Who said? A. King and Golden. Q. Now say what each one said. Did they both say it, or just one? A. If I remember right, they both said it. Q. Where did you leave them? A. I left them on the corner of Thirteenth and Main street. Q. What time of night? A. I should judge it was a little after twelve o'clock. Q. What did King say, if anything, when you left? A. He says, `Burns will talk around about it, about doing anything, and, when you come to do it, he won't do it;' and I told him I wouldn't have anything to do with it. Q. Were there any skeleton keys or burglar tools there? A. Why, I am not positive. I think this man Golden said he had a key he could open the door with."

Robert E. Phelan, who was connected with the police department, was introduced by the state. He arrested all three of the defendants, who were jointly indicted. They were at different places when they were arrested. Phelan further stated that, when he arrested King, King stated he did not know anything about the burglary, and the record discloses that he at all times denied having any connection with it. This police officer says he found the goods stolen at the time of the burglary in the possession of Burns and Golden. He does afterwards say that this defendant was in possession of the goods, but this statement is explained, which clearly indicates that defendant was not in the possession of the stolen goods. The record further discloses that all of these defendants—Golden, Burns, and King—after they were arrested, had a preliminary hearing. At this examination it further appears that defendants Golden and Burns did not testify, but that King did testify as a witness. It is also disclosed that Burns and King had a difficulty or a fight. It is insinuated that this resulted from King's refusal to testify in Burns' behalf. However, it does not clearly appear as to what occasioned the fight between King and Burns, but it does appear from Burns' own statement that they had a difficulty.

The following letter was introduced by the state, marked "Exhibit A": "Dear Friend Ray—Now here is what you want to send to Hadley if you want to do the right thing and be a man with me, for I am certainly going to stick with you Burns as sure as there is a God in heaven—you know I can make $2.50 a day linework right here in K. C. and you know also I can go the other route—R. R. train service anything that good coin is connected with—I'll show you that there is one [] man among so many dirty bastards. I been used to rambling with [] people all my life and don't no anything else and when I say I will do anything I'll do it if its in my power or if any one else can do it for I will go together with a Buzz saw one time in a case like that. Now I tell you Ray this is the right way and only way for us both to go by this & escape the big House. You know there's no evidence against me & I can't be convicted so there's no use for us to do time or buck each other for it will ditch us both.—Now Ray do this and you know you are doing the square & right thing for a friend & a man that will stick. [Signed] J. B. King." There were two other letters introduced, one by the defendant and one by the state, marked "Exhibits C and D." These letters were introduced as being explanatory of letter marked "Exhibit A." Witness Burns admits that he sent these letters to the prosecuting attorney. All of these letters, if written by this defendant, as testified to by Burns, may be susceptible of inferences indicating that defendant may have had some connection with the offense charged. The most that can be said of them is that they created a suspicion against him. This is substantially the testimony upon which this conviction is based.

On the part of the defendant, he testified in his own behalf. His statements as a witness were consistent and in harmony with what he had stated to the officers when questioned on this subject. Upon the defense of an alibi, interposed by defendant, numerous witnesses were introduced. While this testimony was not so clear and convincing as to establish his absence from the place of the commission of the crime beyond a reasonable doubt, yet it was a reasonably fair showing by witnesses who were laboring men and not impeached. He was not required to make out this defense beyond a reasonable doubt, but, if the testimony was of such a character as to raise a reasonable doubt in the mind of the jury as to his presence at the time of the commission of the offense, this was all the law required.

Our attention is first directed to the error complained of in the impaneling of the jury to try this cause. It appears from the record that three of the jurors presented for examination on their voir dire (Coleman, Myers, and Haman) were in the courtroom the day before, when Burns was tried and convicted of the offense charged against this defendant; that they heard a part of the testimony against Burns. That we may fully comprehend this examination, we will here quote from the record in respect to this examination: "Upon the examination of the jurors for qualification, the following questions were asked of Juror J. W. Coleman: By Mr. Riggs: Q. Were you in court yesterday during the trial of Burns? A. I...