State v. Levy

• Decision Date: 13 May 1902
• Citation: 68 S.W. 562,168 Mo. 521
• Parties: STATE v. LEVY et al.
• Court: Missouri Supreme Court

68 S.W. 562

168 Mo. 521

STATE v. LEVY et al.

Supreme Court of Missouri, Division No. 2.

May 13, 1902.

CRIMINAL LAW — RECEIVING STOLEN PROPERTY — HEARSAY EVIDENCE — PREJUDICIAL ERROR.

1. In a prosecution for receiving stolen property, evidence that B. told witness that he (B.) and other boys had stolen the property in question, and had sold it to defendants, and that defendants had requested them to steal it and other property and bring it to them, and had furnished means for stealing the property, was inadmissible, as hearsay.

2. In a prosecution for receiving stolen property, the erroneous admission of hearsay evidence to the effect that defendants had told certain boys to steal the property and bring it to them could not be held without prejudice on appeal.

Appeal from St. Louis court of appeals.

Samuel Levy and another were convicted of receiving stolen property, and appeal. Reversed by the court of appeals, and case certified. Opinion of court of appeals affirmed.

Thos. B. Harvey, for appellants. H. A. Clover and Morton Jourdan, for the State.

SHERWOOD, P. J.

Prosecution in the St. Louis court of criminal correction against defendants for receiving stolen property worth less than $30; result, conviction, and punishment assessed at 12 months in the workhouse.

Only one point in this record requires to be mentioned: Alfred Frey was permitted to state, over the objections of the defendants, "that a boy named Binder told him that he (the said Binder) and other boys had stolen the property in question and had sold it to the defendants, and that defendants had requested them to steal it and other property and bring it to them, and had furnished means for stealing the property," etc. It is quite unnecessary to say that this statement of Frey's is flat hearsay. It possesses the salient and indubitable characteristic of that which is thus designated, in that it is the sworn statement of an unsworn statement. State v. Hathorn (Mo. Sup.) 65 S. W. 756; State v. Huff, 161 Mo., loc. cit. 488, 489, 61 S. W. 900, 1104, and authorities cited. Speaking of admissions and confessions, and when receivable, Bishop says: "So that whatever of this sort is offered as from anybody but the defendant, or one authorized to speak for him, is mere hearsay." In 2 Best, Ev. § 506, under the head of "Res Inter Alios Acta," it is said: "No person is to be affected by the words or acts of others unless he is connected with them, either personally, or by those whom he represents or by whom he is represented." A more recent writer writes: "Hearsay (derivative or secondhand, as opposed to secondary) evidence is that which is learnt from some one else, whether by word of mouth or otherwise; in other words, it is anything which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person." 3 Rice, Ev. 134. "There is no rule in the law of evidence more important or more frequently applied than the general one that hearsay evidence of a fact is not admissible. If any fact is to be substantiated against a person, it ought to be proved in his...