State v. McDowell

• Decision Date: 24 July 1908
• Citation: 113 S.W. 1113,214 Mo. 334
• Parties: STATE v. McDOWELL.
• Court: Missouri Supreme Court

113 S.W. 1113

214 Mo. 334

STATE v. McDOWELL.

Supreme Court of Missouri, Division No. 2.

July 24, 1908.

1. LARCENY (§ 43) — PROSECUTION — EVIDENCE — ADMISSIBILITY.

In a prosecution of an officer for larceny from a person whom he had arrested, where accused claimed that the arrest was for drunkenness and disorderly conduct, evidence as to whether the person was drunk or sober while in a saloon just before his arrest was admissible.

2. WITNESSES (§ 414) — CORROBORATION.

In a prosecution of an officer for stealing money from a person while in his custody, where the person testified that he had with him a certain sum at the time, evidence that he was in a saloon just before his arrest by accused, and had displayed a certain number of bank notes of certain denominations, was competent to corroborate him.

3. LARCENY (§ 55) — GRAND LARCENY — PROSECUTION — SUFFICIENCY OF EVIDENCE.

Evidence held sufficient to sustain a conviction of larceny.

4. CRIMINAL LAW (§ 742) — TRIAL — PROVINCE OF JURY — CREDIBILITY OF WITNESSES.

The credibility of witnesses is a question for the jury.

5. CRIMINAL LAW (§ 741) — TRIAL — PROVINCE OF JURY — WEIGHT OF TESTIMONY.

The weight of testimony is a question for the jury.

6. CRIMINAL LAW (§ 1159) — APPEAL — REVIEW — VERDICT ON CONFLICTING EVIDENCE.

A verdict on conflicting evidence will not be disturbed on appeal, where there is substantial evidence to support it.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

James McDowell was convicted of grand larceny, and appeals. Affirmed.

This case is brought to this court by appeal on the part of the defendant from a judgment of conviction in the Phelps county circuit court of the offense of grand larceny. On the 29th of February, 1908, the prosecuting attorney of Phelps county filed his information, duly verified, with the clerk of the circuit court of said county, charging the defendant and one Sig Riley with the crime of grand larceny, alleging that on the _____ day of December, 1907, at said county, defendant and Sig Riley did steal, take, and carry away $80 in money, of the personal property of T. D. Hodges. At the March term of said circuit court, and on the 18th day of March, 1908, defendants asked for and were granted a severance. The prosecuting attorney dismissed the case as to Sig Riley. The defendant James McDowell, the appellant in this cause, was duly arraigned, and entered a plea of not guilty, whereupon he was put upon his trial. The evidence developed at the trial upon the part of the state tended to prove substantially the following state of facts: On the 16th day of December, 1907, T. D. Hodges, a farmer, living about five miles from Rolla, in Phelps county, Mo., appeared in Rolla about 11 o'clock in the forenoon. Mr. Hodges was nearly 79 years old at that time. He visited several places of business in Rolla, transacting business, and drew some money from the bank. About 3:30 p. m. he went to what is called "Whiskey Row." At that place, in Gilmore's saloon, he treated his friends several times during the remainder of the afternoon and evening. On one or two occasions he furnished drinks to some of his friends, without drinking himself. He was in a condition as testified to by one of the witnesses, "drinking and feeling good, but attending to his own business." Mr. Hodges, the prosecuting witness, testified that he was capable of attending to his affairs at all times that day. He admitted on the witness stand that he had been drunk on several occasions during his life, but denied that he was in the habit of getting drunk when he came to Rolla, and stated that he was not drunk or unduly under the influence of liquor on said 16th day of December, the date of the alleged larceny. The testimony further tends to show that, on the day it is alleged this larceny was committed, when the prosecuting witness, Mr. Hodges, arrived at Gilmore's saloon, he had on his person, according to his testimony, about $103 in money, consisting of 5 $20 bills, 1 or 2 $1 bills, and some change. The large bills he carried in a pocketbook, and the small bills and change in a purse. Between 8 and 9 o'clock that evening the prosecuting witness treated some friends at Gilmore's saloon two or three times, and each time, as testified to by several witnesses, exhibited his money, throwing out a $20 bill to pay for the drinks, and when the bartender could not make the change he offered small money in payment from his purse. Hodges, the prosecuting witness, testified that he spent about $2 altogether in the saloon. The last time he paid for the drinks and exhibited his money he put the money back in his inside pocket, and immediately walked out of the door of the saloon upon the street. With the exception of the testimony as given by the defendant, there was no evidence in the case tending to show that the prosecuting witness was drunk and disorderly. While he was drinking some, none of the witnesses who testified claimed that he was drunk, with the exception, as heretofore mentioned, of the defendant, who claimed that he was drunk and disorderly. The defendant, James McDowell, at the time it is alleged this offense was committed, was deputy marshal and night watchman at Rolla. The defendant had been in Gilmore's saloon earlier in the evening. As Hodges walked away from the saloon the defendant arrested him, and with Sig Riley took Hodges to the city calaboose and locked him up. As soon as Hodges had been lodged in the calaboose the defendant demanded of him his money, and Hodges handed over to defendant his purse containing his small change. The defendant thereupon brandished his policeman's club and demanded Hodge's pocketbook and the roll of bills. Hodges handed to defendant the pocketbook, which, as Hodges testified, contained at the time 5 $20 bills. The defendant took the pocketbook, turned from the cell wherein Hodges was confined, to the light in the hall near by, with his back to Hodges and the other witness present. Under the light he opened the pocketbook and appeared to be examining its contents for a short time. Turning back to Hodges, defendant called Sig Riley as a witness that the pocketbook contained 1 $20 bill and 22 cents in change. The defendant then restored to Hodges the pocketbook, the $20 bill, and 20 cents in change. Hodges testified that he insisted at the time that there was over $100 in the pocketbook at the time he handed it to defendant,...