State v. Owsley

• Decision Date: 20 September 1892
• Citation: 20 S.W. 194,111 Mo. 450
• Parties: STATE v. OWSLEY.
• Court: Missouri Supreme Court

20 S.W. 194

111 Mo. 450

STATE v. OWSLEY.

Supreme Court of Missouri, Division No. 2.

September 20, 1892.

BURGLARY — EVIDENCE — POSSESSION OF STOLEN PROPERTY — PRESUMPTION — INSTRUCTIONS.

1. Where, in a trial for burglary, there is proof that part of the property stolen from the building at the time of the burglary was found soon thereafter in the possession of defendant, it is not error to refuse to direct a verdict of acquittal.

2. In such case the court instructed that recent possession of property obtained by burglary, if not satisfactorily explained, is presumed to be a guilty possession, and such presumption becomes conclusive unless defendant shall satisfy the jury that it is not a guilty possession; but, if the jury believe such presumption is not corroborated by other evidence, it may be rebutted by the fact of defendant's good character, if such has been shown. Held, that such instruction was not erroneous when the jury was also told that, if they believed defendant had given a reasonable explanation of his possession, and if he did not actually aid in burglary, and came honestly into such possession, he should be acquitted.

3. It appeared that some of the articles stolen were found in defendant's possession at the time of his arrest, and that others were found at the house of defendant's wife, with whom he was not living at the time of his arrest. It did not appear when these latter articles were found, or that they were in the possession of defendant, and no explanation of their possession was given on the trial. Held, that correct instructions as to the presumption arising from the recent possession by defendant of the stolen property were prejudicial to defendant when the property referred to in the instructions included the articles found at the house of defendant's wife.

Appeal from criminal court, Buchanan county; SILAS WOODSON, Judge.

John Owsley was convicted of burglary and appeals. Reversed.

F. S. Winn and T. F. Ryan, for appellant. The Attorney General, for the State.

MACFARLANE, J.

The defendant was jointly indicted with Edward Wells, George Wingeiter, Rose Owsley, and Sadie Owsley, in the criminal court of Buchanan county for burglary in the second degree and grand larceny, by breaking into a store building of Josiah Lamport and stealing therefrom a lot of revolving pistols, some gold and plated rings and chains, a gold watch and chain, and some money, the property of the said Lamport. Defendant was tried separately, found guilty of both burglary and larceny, and was sentenced accordingly. From the sentence he has appealed to this court. He has filed no assignment of errors or brief, and we are required to examine the whole record to ascertain if he has just ground to complain of the proceedings under which he was convicted. It appears from the evidence that the store of Lamport was burglarized about the 15th of December, 1889, and a number of pistols and a watch and chain stolen therefrom. About the 22d of January, 1890, a dwelling occupied by Edward Wells and George Wingeiter and Rose and Sadie Owsley was raided by the police, and these parties and defendant were found in the house, and arrested. Several pistols were found concealed about the premises, which were identified as of those stolen from Lamport. The stolen watch and chain were found in the pocket of defendant. The two Owsley girls were daughters of defendant, and were living with Wells and Wingeiter in the house in which they were arrested. Defendant and his wife had their residence in another part of the town, and two of the stolen pistols were found in this residence. This was in substance the evidence of the prosecution in chief. A demurrer to the evidence was here interposed by defendant, which was denied, and an exception saved. The evidence on the part of defendant was, in substance, that the burglary and larceny were committed by Wells and Wingeiter, without the knowledge of defendant, either before or after the act; that the goods were taken to their house about the middle of December, 1889, at which time defendant was living with his wife in their residence; that when the stolen goods were brought to the house of Wells and Wingeiter, Rose Owsley, who was living with them, took the stolen watch as her part of the spoils. That some five or six days before the arrest defendant, at the request of his daughters, came to their place, and had slept there until the arrest. The reason given for his going there to live was that the girls were sick with "grip," and he went to wait on them. While there he took the watch from the center table by permission of Rose, for the purpose of enabling him to know the time he wanted to get out of bed the next morning. This was the explanation given of his possession. Evidence was offered by defendant tending to prove that his hearing was so bad that he could not understand a conversation in an ordinary tone. No evidence was offered to explain how the two pistols came to be at defendant's residence. These facts were disclosed principally by the testimony of the defendant and the parties jointly indicted with him. The evidence tended to prove that defendant had a fairly good character, and was industrious. The character of those jointly indicted with defendant was bad. Complaint is made in the motion for a new trial of the following instruction: "No. 2. The court instructs the jury that recent possession of personal property obtained by and through a...