State v. Levy

• Decision Date: 24 November 1914
• Docket Number: No. 18384.,18384.
• Citation: 262 Mo. 181,170 S.W. 1114
• Parties: STATE v. LEVY.
• Court: Missouri Supreme Court

170 S.W. 1114

262 Mo. 181

STATE v. LEVY.

No. 18384.

Supreme Court of Missouri, Division No. 2.

November 24, 1914.

1. CRIMINAL LAW (§ 1202) — ADMISSION OF EVIDENCE—ISSUES.

In a prosecution for stealing a pocketbook, a conviction of burglary in another state and penitentiary sentence, subjecting defendant to Rev. St. 1909, § 4914, providing that a conviction in another state of an offense which if committed in this state would be punishable by imprisonment in the penitentiary, upon conviction for any subsequent offense within the state should have the same effect as if the first conviction had been in this state, where defendant's theory was that the previous conviction could not be the basis of a charge, on the ground that he was under 18 when convicted and that on a conviction in this state he would have been sent to the reform school and not to the penitentiary, where there was no evidence as to his age except his own testimony, there was no error in admitting the transcript of former conviction, since the jury might discredit his testimony.

2. CRIMINAL LAW (§ 1202)—INSTRUCTIONS— EVIDENCE AND ISSUES.

In such prosecution, the mere fact that defendant testified that he was under 18 when convicted in the other state did not require a submission of the issue of his former conviction, because the jury was not concluded by oral evidence of either the state or the defendant and might always discredit it.

3. CRIMINAL LAW (§ 1064)—OMISSION TO INSTRUCT — COMPLAINT IN MOTION FOR NEW TRIAL.

Alleged error in an omission to instruct should be specifically urged in the motion for a new trial; otherwise the issue raised or attempted to be raised is not before the Supreme Court for review.

4. CRIMINAL LAW (§ 693) — ADMISSION OF EVIDENCE—TIME FOR OBJECTION.

When alleged improper evidence is offered, the party who might be injured by its admission must object specifically, and where it is not then objected to and an exception saved any objection thereafter is too late.

5. CRIMINAL LAW (§ 410)—EVIDENCE—PRESUMPTION —ADMISSION BY ATTORNEY.

An admission by an attorney in open court during the trial of a cause against the interest of his client is presumed to be true, and courts are warranted in acting thereon, since they are officers of the court representing their clients and their admissions bind their clients.

6. CRIMINAL LAW (§ 761)—INSTRUCTIONS— ASSUMPTION OF FACTS.

In a prosecution for stealing, after conviction in another state, subjecting defendant to the punishment prescribed for a former conviction under Rev. St. 1909, § 4914, an instruction that, if the money was stolen from a certain person and shortly thereafter found in defendant's possession under circumstances such as to demand an explanation which he failed to make in a manner consistent with his innocence, he was presumed to be the person who stole it, which presumption would be conclusive unless overcome by defendant's evidence, and that if he gave a reasonable explanation it must be found false beyond a reasonable doubt before he could be convicted, was not objectionable as assuming that the money found in defendant's possession was the identical money recently stolen from the alleged owner.

7. CRIMINAL LAW (§ 703)—TRIAL—CONDUCT OF PROSECUTING ATTORNEY.

A prosecutor should not in his opening statement refer to evidence which he cannot legally introduce, and if the case was very close, and a conviction rests upon unsatisfactory testimony, such misconduct will be weighed in connection with the facts, and a less misconduct will work a reversal than where the evidence of defendant's guilt is very strong.

8. CRIMINAL LAW (§ 730)—TRIAL—CONDUCT OF PROSECUTING ATTORNEY—CURE BY INSTRUCTION.

In a criminal prosecution, any misconduct in the prosecutor's statement detailing alleged evidence of attempted bribery of the prosecuting witness was cured by an instruction to disregard his statements as to such attempted bribery.

9. LARCENY (§ 64)—WEIGHT OF EVIDENCE.

In a prosecution for the theft of money, where the alleged owner stated the date of a coin, the well-known fact that a great number of coins of each year are in circulation went only to the weight of the state's evidence of the finding of a coin of the same date upon the defendant.

10. LARCENY (§ 77) — INSTRUCTIONS — PRESUMPTION OF GUILT.

In a prosecution for stealing a pocketbook containing a certain amount of money, where the alleged owner minutely described a missing gold coin as of the date of 1902, and missing pennies as having been carried until they were dirty, and one of them had a dark color, and where a gold coin of that date and pennies of that description were shortly thereafter found in defendant's possession, the evidence was sufficient to warrant an instruction on the presumption of guilt arising from the possession of recently stolen property.

Appeal from St. Louis Circuit Court; Wm. T. Jones, Judge.

Harry Levy was convicted of stealing and with having previously been convicted of burglary in another state, and he appeals. Affirmed.

Defendant was charged with stealing a pocketbook containing $61.65 from one Dr. Burke on January 7, 1914, and also with having previously been convicted of the crime of burglary in the state of West Virginia, and, having been found guilty as charged, was sentenced to serve a term of seven years in the penitentiary. After unavailing efforts to secure a new trial and to arrest the judgment, he appeals.

The evidence on the part of the state tends to prove the crime charged against defendant, and is substantially as follows: Defendant was seen standing in front of the Union Depot in St. Louis, Mo., a few minutes before Dr. Burke came out of said depot and attempted to board a north-bound Eighteenth street car. Burke was carrying a valise and leading a sick woman, and while on the platform of the car he felt "an unnatural disturbance" in his pants pocket. Before the car started he discovered that his pocketbook was gone and immediately got off the car. Police Officer Stinger was on the same car and saw defendant hurry through the car and get off at the front end thereof. This act of defendant aroused the suspicion of the police officer, and he also got off the car in time to see defendant board another car going south on Eighteenth street. Upon being informed that Dr. Burke's pocketbook had been stolen, the officer followed defendant on the next car and overtook him at Eighteenth and Gratiot streets. When first seen at Gratiot street defendant was coming towards the street car track, and, when asked by the officer what he had been doing, he replied that he had gone to Gratiot street to see a lumberman but had failed to find him. He was then arrested for the alleged theft of Dr. Burke's pocketbook and brought back to the depot, where he announced that he had plenty of money but had not taken any from Burke. Burke testified that he had in his pocketbook when the same was stolen two $20 bills, one $5 bill, and a $10 gold piece dated 1902; also, some smaller change, among which were 5 pennies that he had carried for some time as keepsakes; that these pennies were dirty and one of them of a dark color.

At the police station defendant was searched, and in one of his pockets was found a roll of $1 bills "nicely folded," and in another pocket was found two $20 bills and one $5 bill not folded but all "crumpled up"; also, some smaller change, including 5 pennies of the same color and description as those Dr. Burke had in his pocketbook. When no gold was found in defendant's pockets, he remarked that he had no $10 gold piece, and that Dr. Burke had lied in charging him with taking his pocketbook and money. However, the police officer continued the search, and when defendant's underclothes were removed a $10 gold piece fell out of them. This gold piece bore the date of 1902. The police officer then went back to Gratiot street, where he had arrested defendant, and, about 300 feet from where the arrest was made, found Dr. Burke's empty pocketbook lying near some piles of lumber.

Defendant testified that he went out on Gratiot street to call on a lumberman for whom he had been selling lumber, but there was no lumber yard or office in that part of the city. Defendant also stated that he recognized the $10 gold piece found in his underclothes as the same coin on which he had made a small mark with an ice pick several months before he was arrested. The defendant, further testifying in his own behalf, admitted that he had been convicted in Ohio county, W. Va., of the crime of burglary, and that he had served a term in the penitentiary of that state and had been discharged. He also testified that at the time he was so convicted he was under the age of 18 years.

To save the space which would be consumed in repeating them, we will note the alleged errors assigned by defendant in connection with the conclusions we have reached.

Seebert G. Jones, of St. Louis, for appellant. John T. Barker, Atty. Gen., for the State.

BROWN, J. (after stating the facts as above).

I. Transcript. After defendant rested the state...