State v. Levitt

• Citation: 213 S.W. 108,278 Mo. 372
• Decision Date: 03 June 1919
• Docket Number: No. 21303.,21303.
• Parties: STATE v. LEVITT.
• Court: Missouri Supreme Court

213 S.W. 108

278 Mo. 372

STATE v. LEVITT.

No. 21303.

Supreme Court of Missouri, Division No. 2.

June 3, 1919.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Sam Levitt was convicted of burglary and larceny, and he appeals. Reversed, and cause remanded.

Thos. B. Harvey, of St. Louis, for appellant.

Frank W. McAllister, Atty. Gen., and George V. Berry, Sp. Asst. Atty. Gen., for the State.

WHITE, C.

The defendant was brought to trial in the circuit court of the city of St. Louis on an information charging him, together with Harry Spector and Jacob Blickman, with the crime of burglary and larceny, under section 4528, R. S. 1909. He was granted a severance, was found guilty, and his punishment assessed at live years in the penitentiary. From that judgment he has appealed to this court.

During the night of September 3, 1913, the store of Abraham Brown, located at 1534 Franklin avenue, in the city of St. Louis, was burglarized, and a large quantity of pants, hats, and other articles of clothing, aggregating $650 in value, were stolen. The next morning, about 7:30 o'clock, one Jacob Alpert, living at the Metropole Hotel, was called upon by the appellant, who desired to sell him a job lot of pants. Appellant produced a sample, and Alpert agreed to buy the lot for $150, but refused to pay any money until the pants were delivered. Shortly afterwards the lot of pants was delivered to him at the Metropole Hotel, and Alpert paid the appellant $95. Later in the day, after appellant, with Spector and Blickman, was arrested and held at the police station, a conversation took place in which the officers were endeavoring to gain information from the suspects, and the appellant, Levitt, said that he had bought the pants from Spector and Blickman. Spector and Blickman each then stated in the presence of Levitt, Alpert, and the officers that Levitt had assisted them in entering the store and removing the property. Levitt denied this, and reiterated his statement that he had bought the property from Spector and Blickman. This conversation was testified to by Alpert and by Police Officers O'Hare and Oertli. Spector and Blickman further stated that Levitt had given them part of the money received from Alpert. Brown identified some of the pants as those taken from his store.

The only evidence offered by defendant Levitt was the testimony of his two sisters, which was offered for the purpose of establishing an alibi. Each of the sisters swore that he was at home on the night of the burglary and until 7:30 the next Morning.

I. The appellant assigns error to the ruling of the court in permitting the police officers to testify to the conversation in which Spector and Blickman stated in their presence that Levitt aided them in committing the burglary and larceny, a statement which Levitt at the time promptly denied. This evidence was admitted by the trial court on the ground that the statements were made in the presence of the defendant. An accusatory statement, made by another person to or in the presence of a defendant charged with a crime, is admitted, when the silence of the accused under the circumstances is a tacit confession of the truth of the statement. State v. Walker, 78 Mo. 388; 1 Greenleaf, §§ 197, 198; State v. Butler, 258 Mo. loc. cit. 436, 167 S. W. 509. Such incriminating evidence is sometimes received, where the defendant denies only part,. or qualifies his denial, or by his silence acquiesces in what is said. Here, however, the defendant stoutly denied in toto the statements made. In such cases the rule is general that evidence of that character is inadmissible, because it is hearsay. 16 C. J. p. 634, and cases cited in note. The rule has been so applied in this state. Such evidence was held inadmissible, because the defendant denied the statements, and therefore did not acquiesce. State v. Richardson, 194 Mo. 326, loc. cit. 339, 92 S. W. 649. Spector and Blickman were not witnesses in the case, and what they said about the defendant's connection with the crime was brought before the jury against the defendant as pure hearsay, with no opportunity to cross-examine.

Respondent claims that the point was not saved by proper objection and exception to the ruling of the court in admitting it, and therefore is not available to the defendant. When Alpert was on the stand, he was asked what statements Spector and Dickman made, in regard to taking the pants, in the presence of the defendant. Defendant objected, because the evidence was entirely hearsay. The objection was overruled, and defendant saved no exception at that time. Later, when Officer O'Hare was sworn, he was asked a similar question, and defendant objected to what was said between the parties. The court overruled the...