State v. Raftery

• Decision Date: 28 June 1913
• Parties: THE STATE v. ED RAFTERY, Appellant
• Court: Missouri Supreme Court

158 S.W. 585

252 Mo. 72

THE STATE v. ED RAFTERY, Appellant

Supreme Court of Missouri, Second Division

June 28, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Leo S. Rassieur Judge.

Affirmed.

Charles P. Williams for appellant.

(1) The court should have given the instruction asked for; or should at least have instructed that the mere receiving of stolen property was insufficient. R.S. 1909, sec. 5231; State v Vinso, 171 Mo. 578; State v. Anslinger, 171 Mo 600; State v. Fredericks, 136 Mo. 51. The necessity for such an instruction is plainly shown by the closing appeal of the assistant circuit attorney. (2) The comment of the assistant circuit attorney as to the failure of the co-defendant to testify was most damaging; and when followed up at the very last, in the closing speech (always of great weight and influence in a criminal case) by the sinister suggestion as to the failure of the defendant to testify to certain things by way of explanation, prevented a fair trial. These remarks were mildly corrected by the trial court, but were never withdrawn by the circuit attorney. State v. Spivey, 191 Mo. 112; State v. Shouse, 188 Mo. 473; State v. Shipley, 174 Mo. 512; State v. Weaver, 165 Mo. 1; State v. Brownfield, 15 Mo.App. 593; State v. Fairland, 121 Mo. 137. (3) In spite of his just having given bond upon the charge against him, the defendant was seized by the police and carried for sweating before the chief of detectives, together with his brother. He was there subjected to the stories of his alleged confederates, and to a series of continued questionings himself. He was taken the next day under custody to the police station in North St. Louis, when he was again subjected to police interrogation. During all this time he was constructively out on bond under the guardianship of the court that had admitted him to bail, and the police officers were well aware of this fact. If a confession obtained under duress be inadmissible and ought to be disregarded, illegal imprisonment would seem to be one form of duress; and at the very least, the court should have fairly submitted the evidence upon this point to the jury, and accompanied it by an apt and appropriate instruction as to its voluntary or involuntary character, which the court failed to do. R.S. 1909, sec. 5231.

John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.

(1) The defendant, by his counsel, asked the following instruction: "The court instructs the jury that the mere fact that defendant may have received a portion of the property alleged to have been stolen does not warrant the jury in finding the defendant guilty." The court refused to give the instruction, and defendant, by his counsel, duly excepted. If it would be proper to give this instruction in any case of larceny, it was not error to refuse it in the case at bar, for the reason that there was no evidence authorizing it, or upon which it could be based. All of the testimony for the State showed the defendant a principal in the larceny, and all of the testimony for the defendant showed him to be innocent of the offense charged, or of receiving any part of the stolen money. A party engaged in the transaction is a principal thief, not a receiver. State v. Smith, 37 Mo. 67; State v. Horrig, 78 Mo. 252; 25 Cyc. 59, par. D. By all the evidence in the case the defendant was either guilty as a principal in the larceny charged, or he was innocent. There was not a scintilla of evidence that he was guilty of receiving stolen property. When there is no evidence upon which to predicate an instruction, it is proper for the court to refuse the instruction requested. State v. Coffee, 158 Mo. 572. The defense was an alibi, and there was evidence tending to sustain that defense, and the defendant was guilty of the larceny charged or guilty of no offense at all, and the instruction was properly refused. State v. Whalen, 148 Mo. 290; State v. Anslinger, 171 Mo. 609. The most that can be said for the defendant, that when he was confronted by the gypsy boy, Burns, and Kennedy in the police station and heard them detail the manner of the larceny and implicate him as an active participant in the commission of the offense, he neither admitted nor denied their accusation, but cursed them. His silence was a confession. Underhill on Crim. Ev., p. 153, par. 122; State v. Good, 132 Mo. 114; State v. Mullins, 101 Mo. 514; State v. Taylor, 134 Mo. 133. (2) The mere fact that defendant was held without process or otherwise in illegal custody cannot exclude his statements or confessions. Underhill on Crim. Ev., p. 163, par. 129; State v. Simon, 50 Mo. 370; State v. Carlyle, 57 Mo. 102; State v. Shackelford, 148 Mo. 393; State v. Vaughan, 152 Mo. 73; State v. Church, 199 Mo. 605; State v. Spaugh, 200 Mo. 571; State v. Armstrong, 203 Mo. 571; Balbo v. People, 80 N.Y. 484. (3) For a discussion regarding comment by the State's counsel on the failure of the defendant to deny incriminating statements, see State v. Larkin, 250 Mo. 218, and the State's brief therein.

ROY, C. Williams, C., concurs.

OPINION

ROY, C.

Defendant was charged jointly with John Burns, alias Podgy Burns, and James Kennedy with burglary and larceny. There was a severance, and the defendant, on a separate trial, was convicted of grand larceny, and sentenced to the penitentiary for two years.

Milasch Vlado and Nicholas Vlado, father and son, gypsies, lived on O'Fallon street in St. Louis, the former at No. 1525 and the latter at No. 1523. They were both married and there was another married son of the father who lived with him. Milasch and his son Nicholas each had about $ 4000. About six thousand dollars of it was in American gold coin, and the remainder was in foreign coin of various countries. It was kept partly in an old piece of hose over three feet long, and partly in some bags, all wrapped in canvas and kept on the bed in the house of the elder Vlado. The wife of Nicholas Vlado had a nephew, George Nicholas, about seventeen years of age, who came from Chicago to St. Louis in March, 1912. When George Nicholas arrived in St. Louis, his uncle Nicholas Vlado was on a trip to Chicago. While in Chicago Nicholas Vlado learned that George Nicholas had stolen some money from a gypsy in Chicago and had gone to St. Louis. On arriving home about March 17, he found George at his (Nicholas Vlado's) home, and drove him away because of the theft.

Will Powers kept a saloon at Fifteenth and Biddle, close to the home of the Vlados.

On the night of March 19, Milasch Vlado and his son Nicholas were initiated into the lodge of the Knights of Pythias and did not return until some time after midnight. The wife of Milasch Vlado and her little granddaughter slept that night in the bed with their heads on the canvas in which the money was kept. About half past eleven o'clock that night George Nicholas, James Kennedy, Podgy Burns, Ben Shaw and Will Powers were all at the saloon of Powers. The question in issue in the trial was whether the defendant was in company of those who went to Vlado's house and got the money. George Nicholas testified that he informed Raftery, Shaw, Burns and Kennedy that the Vlados had money and that they all went to Vlado's house, found the doors open, went in, and went to the bed where Vlado's wife was sleeping and got the money. They carried it to Powers' saloon and scattered it on the floor, Powers being present; and that they all "grabbed" for the money, and thus the division of the booty was made. George Nicholas and the defendant went into hiding. George Nicholas was brought back from Cincinnati by the officers of the law. The defendant, knowing that the police were after him, surrendered to the sheriff and gave bond for his appearance and was released. The police promptly rearrested him.

The gypsy boy, Burns, Kennedy and the defendant were all brought together by the police who were in charge of them, and Sergeant Campbell testified as follows as to what then occurred:

"Mr Shaner: I will ask you what you asked Kennedy in reference to this stealing, and what Kennedy said? A. Kennedy said that they had went to this place --

"Q. That who went? A. That he, Burns, Raftery and the gypsy boy, and that Raftery, and I disremember who else, went up in the house -- Burns, I think it was -- and this fellow had a knife, Raftery, and then, they returned and had the gypsy boy, cursing him, says, 'God damn you, that money isn't there.' They took the gypsy boy up then and he located the money for them. Kennedy said they brought the money from there over to the saloon, Raftery helping carry the money, helped to carry it down the steps, and that Raftery and Burns took the hose and dumped it out on the floor and the proceeds was divided there, and that Raftery had taken one of the sacks and went out of the side door of the saloon; then they had left. And Burns quoted it pretty near word for word the same way.

"Mr. Shaner: What did Raftery say in answer to that, or what did you ask him? A. I asked Raftery if that was true, what Kennedy and Burns had just told, and he said they were 'God damn rabbiting sons of bitches' and that there was no 'rabbit' in him. He says, 'Go on with their rabbiting; let them rabbit.' I asked him what he meant by 'rabbiting;' he said he was doing no snitching.

"Q. What did he say further in reference to what he got, if anything?

"Mr. Gernez: I object to that as leading.

"The Court: What, if anything, did he say about this money? A. I asked him how much of the proceeds he got; he said he got $ 150 for his share and he knew where the rest of the money was. I think, as near as I can remember, that is the words he used; and there was no rabbit in him, go on and give him the...