State v. McGee
| Decision Date | 16 May 1905 |
| Citation | 87 S.W. 452,188 Mo. 401 |
| Parties | STATE v. McGEE. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.
John McGee was convicted of larceny, and he appeals. Affirmed.
William E. Fish, for appellant. H. S. Hadley, Atty. Gen., and John Kennish, Asst. Atty. Gen., for the State.
This is the second appeal in this cause. The first will be found reported in State v. McGee and McGraw, 181 Mo. 312, 80 S. W. 899. The former judgment was reversed because the information was not verified as required by the statutes of this state. After the cause was reversed the information was duly verified by Mr. Harlow B. Spencer, prosecuting witness, and the defendant was again tried and convicted, and from this second conviction he prosecutes this appeal. It may be properly added that after the reversal there was a severance, and the defendant was separately tried.
Upon the trial the evidence for the state tended to prove the following facts: On the night of the 21st of January, 1903, Harlow B. Spencer, the prosecuting witness in this case, accompanied a lady to Union Station, in the city of St. Louis, where the lady was to take passage for Chicago on the Chicago & Alton train due to leave St. Louis at 11:40 p. m. They arrived at the train about 15 minutes before time for its departure. The train was standing in the train shed, and a platform or walk extended along the train for the accommodation of the passengers in getting aboard or leaving trains. The train consisted of two sleeping cars and a chair car, and the evidence does not disclose how many other passenger cars, if any, were in the train. The last car was a standard sleeping car, the next in front was a compartment sleeping car, and the chair car was immediately in front of the compartment car. There was a vestibule connection between the chair car and the sleeping car next in the rear, and at the time in question there was but one vestibule door and steps between the sleeping car and chair car open for passengers to get off or on, and that was the left-hand door at the rear end of the chair car. Mr. Spencer boarded the train with the lady; entering the compartment sleeping car, and remaining there until the train, on schedule time, began moving away. He then hastened forward to get off. When he reached the steps at the rear end of the chair car, the train began moving at a speed of an ordinary walk. He found the passage way of the steps blocked by three men, one of whom, being in the lead and about on the top step, roughly jostled against Spencer. The other two stood further down and fronted up the steps, so that for a short time, crowding against Spencer, they blocked the passageway, and Spencer was unable to get by; but, finally turning sideways, they let Spencer pass, and he got off the train. Within a few minutes after alighting from the train he missed his scarf pin, valued at $190, which he had worn sticking in his necktie. He immediately telegraphed ahead to the lady on the train about losing his scarf pin, and asked that she have the compartment searched therefor. The three men on the steps as Spencer was leaving the train were afterwards identified as John Scullin, who was the man farthest up the steps, Edward McGraw, and the defendant. The conductor, who was on the lower step as Spencer came out to get off, saw Scullin make a motion with his left hand over Spencer's scarf. The passenger flagman, Downing, standing on the trapdoor of the platform, across from the steps where Spencer was trying to get off, saw Scullin put his arm against Spencer and take the pin out of Spencer's tie. Downing within a few minutes reported the fact to the conductor, and the latter telegraphed the occurrence to the police at Chicago. Scullin, McGraw and the defendant entered the chair car, and, after talking together, took seats, one near the front, one near the middle, and the other near the rear. The train was due at Chicago at 8:10 next morning. At Brighton, a station about five miles out of Chicago, the detectives boarded the train. Halstead Station is a stopping place in the city of Chicago about two or three miles from the Union Station. Scullin and the defendant were seen talking together between Brighton and Halstead Stations in the morning. The three men went to the door of the car to get off at Halstead Station. They were then pointed out to the detectives, who took them in charge. While in the custody of the detectives the defendant and McGraw each told them where they could find the pin—stated that it would be found, stuck in a newspaper about three seats from the rear door of the car. After search had been made for the pin and it had not been found, defendant and McGraw, when informed of the failure to find it, asked witness Cain if he wouldn't take $125 and hand it back to the sucker (meaning Spencer). It was in evidence that Scullin and the defendant were seen together at different places in St. Louis a few days before this occurrence, and that defendant stated that he and Scullin were boarding at a hotel in East St. Louis. One of these three men, about 20 minutes before the train started, asked the conductor what he could do towards getting him and one or two companions to Chicago. When Spencer was trying to get off the train, the defendant and McGraw blocked the steps, crowded against Spencer until Scullin had secured the pin, and then, and not until then, they turned sideways and let Spencer pass.
At the close of the state's evidence the defendant asked a peremptory instruction directing the jury to acquit. This instruction was refused by the court, and defendant excepted. No evidence was offered on the part of the defendant.
The errors complained of by the appellant in his motion for new trial and in arrest and in his brief are (1) the insufficiency of the evidence to sustain the verdict; (2) the...
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