State v. Nelson

• Decision Date: 12 February 1910
• Parties: STATE v. NELSON.
• Court: Missouri Supreme Court

125 S.W. 505

225 Mo. 551

STATE v. NELSON.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

1. CRIMINAL LAW (§§ 1038, 1056) — APPEAL — FAILURE TO INSTRUCT ON ALL THE LAW — BILL OF EXCEPTIONS.

That the court failed to instruct on all the law involved in the case, in failing to cover the subject of good character of defendant, as to which there was evidence, is not available as error, the bill of exceptions failing to show any exception to such failure, or that intimation or suggestion was made to the court of such failure.

2. CRIMINAL LAW (§ 1056) — APPEAL — QUESTIONS FIRST RAISED ON MOTION FOR NEW TRIAL.

The question of the court's failure to instruct as to all the law in the case, not having been preserved in the bill of exceptions, cannot be made available by being raised for the first time in a motion for new trial.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

J. E. Nelson was convicted of crime, and he appeals. Affirmed.

This is an appeal on the part of the defendant from a judgment of the circuit court of Howell county, convicting him of both burglary and larceny. On December 8, 1908, the prosecuting attorney of Howell county filed an amended information, charging defendant with having burglarized, on July 30, 1908, the storehouse of one George L. Garoutte, located in the town of Mountain View, in said county, and also with having stolen certain merchandise therefrom, to the amount of $30 or more. To the amended information as filed the defendant entered his plea of not guilty, and was put upon his trial.

The facts developed upon the trial of this cause are substantially as follows: The prosecuting witness, Garoutte, had a store in the town of Mountain View, and on the night of July 29th, or the morning of July 30th, some one with an auger bored holes around the lock of the store door, opened the same and stole some 300 pounds of flour, a pistol, and various other articles of merchandise therefrom; also a bunch of keys belonging to the prosecuting witness. The defendant was seen on the evening of July 29th in the town of Mountain View. It appears from the testimony that he had a team consisting of one horse and one mule, and a wagon, and was camped within a short distance of the town; that he left early on the following morning before the burglary of the store was known to the owner. Defendant was arrested just after he had passed through the town of Summerville on his way to Dent county. At the time of his arrest 200 pounds of flour, a pistol, and a number of other small items of merchandise were found in defendant's wagon, some of them hid in a sack and others hid beneath a quilt. At first defendant refused to permit his wagon to be searched, and also refused to permit himself to be searched. Immediately after his arrest, when passing a well, defendant was seen to throw something like a bunch of keys down into it. Thereafter the well was dragged and a bunch of keys was found therein, which keys were identified by the prosecuting witness as those stolen from his store on the night of the burglary. In defendant's wagon was found an auger, which was taken back to Mountain View and there compared with the auger holes around the lock of the store door, which had been burglarized, and was found to be the same sized auger with which the holes had been bored. Defendant, when passing through the town of Summerville, seemed to drive in a hurry, as though he feared his arrest. Defendant testified as a witness in his own behalf; admitted having camped at the town of Mountain View on the night of July 29th; admitted having the goods found in his possession, but stated that he found them in a pasture, near the road, a short distance north of Mountain View, early on the morning of July 30th, the morning following the night that the burglary and larceny had been committed. Defendant testified that he left Dent county on July 28th, and had visited a number of prospect mines in the locality of Mountain View. Some proof was given in evidence tending to prove a good reputation on the part of defendant, while some witnesses testified that they had heard some complaint as to defendant's reputation around the town of Summerville, where he had once resided. At the close of the evidence the court instructed the jury upon...