State v. Lockhart

• Decision Date: 16 May 1905
• Citation: 87 S.W. 457,188 Mo. 427
• Parties: STATE v. LOCKHART et al.
• Court: Missouri Supreme Court

87 S.W. 457

188 Mo. 427

STATE v. LOCKHART et al.

Supreme Court of Missouri, Division No. 2.

May 16, 1905.

GRAND LARCENY—EVIDENCE—PROSECUTING ATTORNEY —IMPROPER ARGUMENT.

1. In a prosecution for grand larceny, evidence held insufficient to sustain a conviction.

2. Where prosecutor claimed to have been robbed by defendants, who were inmates of a house of prostitution, evidence that on the evening of the alleged theft he stated that he had been robbed, but did not know where, and did not know how any one could have robbed him, was admissible as tending to impeach or impair the certainty of the statement that he was robbed in defendants' house of prostitution.

3. Where, in a prosecution for alleged robbery in a house of prostitution, there was evidence of but a single act of prostitution occurring there, it was improper for the prosecuting attorney over defendants' objection to state that the house was "an open and notorious house of prostitution."

4. Where, in a prosecution for larceny alleged to have been committed by inmates of a house of prostitution, there was no evidence that any one was in the room occupied by prosecutor and his paramour at the time the money was alleged to have been stolen, nor that the house was a "panel house," or that the "panel game" was practiced there, it was improper for the prosecuting attorney in argument to state that prosecutor was a victim of the "panel game," and that his testimony showed that the room which he occupied was a room where the game could be successfully worked and was worked.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Lottie Lockhart and another were convicted of grand larceny, and they appeal. Reversed.

Thos. B. Harvey, for appellants. H. S. Hadley, Atty. Gen., and Rush C. Lake, Asst. Atty. Gen., for the State.

GANTT, J.

The defendants appeal from a conviction of grand larceny in the circuit court of St. Louis. The prosecution is by information. There is no irregularity in the record proper. The errors for which a reversal is sought are those which it is insisted occurred on the trial of the cause and the insufficiency of the evidence.

The prosecuting witness was one Lunsford Sawyer. It appears from his evidence that at the date of the alleged larceny he was rooming in St. Louis on Laclede avenue. Prior to that time he had been a clerk in New York. On the afternoon of the 15th of March, 1904, he left his room about 2 o'clock in the afternoon and went down into the city, and had been down there about an hour and a half when he met the defendant Lockhart about Twentieth street and Pine. He was walking along Pine street, and she spoke to him, and he stopped, and she invited him to her room. He accompanied her to 2111 Market street. She opened the door, and he and she went upstairs and went into a front room. Saw no one else until he passed defendant Dale in the hall as he was leaving. The room had folding doors between it and the room in the rear of it, and a curtain—"a lace curtain affair, like lace curtains on a front window"—hung in front of the folding door. After he reached the room he proceeded to undress himself, and hung his coat on the chair. His other clothing he placed on a trunk at the foot of the bed. The trunk was almost in line with the portiere. He did not enter any other room in that house that day. After he had placed his clothing on the trunk, the defendant Lockhart threw the bed cover back over the foot of the bed, and practically over his clothing on the trunk, and got in the bed, and he then went to bed with her. He testified he had $220 in the hip pocket of his pants, in a pocketbook, at his boarding house that day. The money consisted of one $100 bill, five 20's and a $10 bill. He had $10 more in that pocket, and the rest of his money was in an outside pocket, loose. He gave the defendant Lockhart $1. He says he was in this room perhaps one-half hour, and when he left he went downstairs by himself, and passed the other defendant, Dale, in the hall, but said nothing to her. He took a car just after coming out of the said house No. 2111 Market street, and returned to his room, and, soon after reaching it, examined his pocketbook, and found all of his money gone but two $5 bills. He returned to the city, and consulted a policeman, who advised him to go, and he did return, to No. 2111 Market, and there met the old woman, the defendant Dale, and inquired for defendant Lockhart, and she told him she was out. He then told her he had lost some money up there that afternoon, and she said she knew nothing about it, and requested him to wait until defendant Lockhart returned about 7 o'clock. He left, and went back at 7 that afternoon, and found both of the defendants there. He told them the amount he had lost, $210, and that they must give it back, or he would have them arrested. Both women protested they knew nothing of his money, and the defendant Dale tried to settle with him for $100; that she didn't want him to think he had lost his money in her house; but he remained positive in his demand, and finally the defendant Dale went into another room, and brought him $210, but in different denominations from the money he had lost. Asked if he heard any noise in the room while he occupied the bed, he said: "Not any great noise. I seen these curtains wave like the wind was blowing there; and since then I have kind of mistrusted there must be a person come through that door." He made no mention of the curtains blowing to the woman. He could see the curtains as he lay on the bed. He testified that defendant Lockhart was in his presence all the time he was in the room with her; that most of the time she was on the bed with him, and he did not see her touch his clothing; that he dressed himself immediately after getting out of the bed, and felt his pocketbook in his pocket. His pocketbook was in a pocket that was buttoned, and it was still buttoned when he put on his trousers and felt his pocketbook in there; but he recognized, after going to his room, that the button was loose, but he did not undertake to say that it was not in that condition when he went to defendant's house, and did not observe that condition when he dressed after getting out of the bed. Defendant Lockhart had nothing to say or do about paying the prosecutor any money, and took no part in that transaction. In the course of his argument, the assistant prosecuting attorney, over the objection of defendants, stated that "2111 Market street is a house of prostitution, an open and notorious house of prostitution," and upon objection that there was no evidence to that effect the court said: "That is a proper subject of inference from the testimony. You do not need to have the direct statement from the witness." Continuing, the representative of the state said: "I say the young man was a victim of the panel game, and the testimony of young Sawyer goes to show that this was a room wherein a game of this kind could be successfully worked there, and it was worked there." The court held this proper argument.

1. The defendants jointly and severally urge that the verdicts of the jury are without any substantial support in the evidence. An appellate court always enters upon an examination of this point with reluctance, inasmuch as the law provides that the jury are the judges of all questions of fact; but it has been so long and well settled that whether there is any substantial evidence of any material fact is a question for the court that when the proposition is properly presented it is our duty to consider it just as any other assignment of error. For convenience, the testimony...