State v. Rose

• Citation: 76 S.W. 1003,178 Mo. 25
• Parties: THE STATE v. ROSE, Appellant
• Decision Date: 17 November 1903
• Court: United States State Supreme Court of Missouri

76 S.W. 1003

178 Mo. 25

THE STATE v. ROSE, Appellant

Supreme Court of Missouri, Second Division

November 17, 1903

Appeal from Johnson Circuit Court. -- Hon. Wm. L. Jarrott, Judge.

Reversed and remanded.

R. M Robertson for appellant.

(1) Instruction 1 on the part of the State was not right or fair to defendant. If told how small a penitentiary sentence could be given, why not tell how small a jail sentence could be given? Juries sometimes have "expense to county" in mind, and if they had been told they could give one day in the county jail, they might have so found. R. S. 1899, sec 1901. (2) Instruction 2, on the part of the State, was wrong there was no evidence that all the property described in the information was found in defendant's possession; there was no evidence that defendant had one cent of Estes's money in his possession. (3) Instructions numbered 5 and 6, asked by defendant, ought not to have been refused. When the owner consents, there is no larceny; and all the evidence and circumstances surrounding this case go to show that Estes was consenting to defendant's getting the twenty cents on the knife and pocketbook. He waited in the background till defendant got the twenty cents of Palmer, and then helped him drink it up. State v. Lambert, 21 Mo.App. 301; State v. Campbell, 108 Mo. 611. (4) The placing of Justice Brown on the witness stand, with his docket in hand, and the questions put to him and the statements then made by the prosecuting attorney, after the defense had closed, without defendant's testifying in the case, was wrong and contrary to all law. State v. Fischer, 124 Mo. 460; State v. Prendible, 165 Mo. 329; State v. Moxley, 102 Mo. 374; State v. Martin, 74 Mo. 548. (5) But the unfair means of poisoning the minds of the jury against the defendant in the introduction of evidence, as above, did not satisfy the prosecuting attorney, and he continued along the same lines during his entire closing argument, and when defendant's attorney would object, he would deny the statement as made, and when asked to repeat what he did say, so that defendant might except, he would reply, "I don't have to." The court should have rebuked him, but even though it had, the poison had been so skillfully administered that no antidote from the court could then have changed its effect. The laws of Missouri do not tolerate such proceedings. State v. Cring, 64 Mo. 591; State v. Lee, 66 Mo. 165; State v. Fergeson, 152 Mo. 92; State v. Ulrich, 110 Mo. 350; State v. Young, 99 Mo. 666; State v. Bobbet, 131 Mo. 328; State v. Warford, 106 Mo. 55; State v. Foley, 12 Mo.App. 431.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) Defendant was not prejudiced by the effort of the prosecuting attorney to introduce the record of the justice of the peace. There is nothing stated in the record showing that the defendant requested the court to rebuke the prosecuting attorney for offering to introduce the record of the justice of the peace, nor is there anything showing that the request was made to rebuke the prosecuting attorney when he stated that he wanted to show the record. The statement that the prosecuting attorney made was not that he wanted to show the defendant's previous record, but that he wanted to show the record of the justice of the peace. As to whether or not the record so offered reflected upon the character and conduct of the defendant, the testimony does not show, and as long as there is no showing in that respect, it certainly could not prejudice the interests of the defendant. The record was denied admission by the court and that is sufficient. The objection made by the defendant to the remarks of the prosecuting attorney are not sufficient to authorize the court to reverse the cause. This colloquy seems to have taken place during the trial. "Mr. Robertson: The prosecuting attorney says that he wants the jury not to turn a character of that kind loose on society." This is a reference to the argument of the prosecuting attorney, by counsel for defendant. The record shows that the prosecuting attorney denied at the time making any such statement; then defendant's counsel requested Mr. Morrow to make his statement then. The prosecuting attorney then stated, "I don't have to. I stated to the jury that a man who would steal from his partner in the nighttime, take money out of his pocket, ought to be in the penitentiary; that he ought not to be turned out with good men." The court overruled his statement. We submit that there is nothing in the statement of the prosecuting attorney that he was not justifiable in making. It was a proper argument to be used in addressing the jury. (2) The offense committed was indeed small so far as the value of the property is concerned, and while it may be considered excessive punishment to require defendant to be imprisoned for two years, yet technically the law has been violated and a clear case was made out.

FOX, J. Gantt, P. J., concurs; Burgess, J., absent.

OPINION

FOX, J.

On the 10th day of February, 1903, the prosecuting attorney of Johnson county filed in the circuit court of said county an information charging the defendant with grand larceny, for stealing a knife, pair of gloves and a purse containing some money from the person of one Newton Estes, the offense being committed in the nighttime, and so charged in the information.

The information in this case is based upon the provisions of sections 1900 and 1901 of the Revised Statutes of 1899, which make the stealing of property from a person in the nighttime a felony punishable by imprisonment in the penitentiary not exceeding seven years, or by imprisonment in the county jail not exceeding three months, where the value of the property so stolen is less than thirty dollars; where the value of the property is thirty dollars or upwards, the punishment is fixed at imprisonment in the penitentiary not exceeding seven years.

The defendant was afterwards tried, and convicted, as charged in the information, and his punishment assessed at two years' imprisonment in the penitentiary.

The evidence in this case tends to show that the defendant and the prosecuting witness, Estes, were in a poolroom in the city of Warrensburg about nine o'clock of the evening of the third day of December, 1902; while there the prosecuting witness went to sleep, and the defendant went to him and took from his pocket a purse containing some money, a barlow knife and a pair of gloves; the barlow knife was worth about twenty-five cents and the purse about the same. Soon after the defendant took the knife, purse and gloves from the pocket of the prosecuting witness, he awoke Estes, and they left the poolroom and went to the lighthouse, which evidently was near the railroad track, though its location is not specified in the testimony. They remained there until five o'clock the next morning, when they went to the depot and then to the restaurant.

The prosecuting witness missed his purse and knife immediately after they had left the poolroom while he and the defendant were on their way to the lighthouse. The next morning he asked the defendant to give him his gloves. The defendant did so, and Estes then asked him for the knife and purse. Defendant denied having them. On the following day the prosecuting witness discovered the purse and knife in a secondhand store in Warrensburg. He told the proprietor, Mr. Palmer, that they belonged to him and asked Palmer who had sold them to him. Estes, on being told that Rose had brought them in and sold them to Palmer, immediately went in search for the defendant. The defendant admitted having sold them and told Estes that he would get them for him.

The evidence shows that both the defendant and the prosecuting witness had been drinking during the night of the offense.

Feeling himself aggrieved because of the verdict of the jury, the defendant prosecutes his appeal to this court. Being unable to give bond, he is now confined in the penitentiary.

Sam Renick, witness for State, testified in this cause substantially as follows:

"I live here in Warrensburg. I know the defendant, John Rose. I know Newton Estes. I saw John Rose and Estes in the billiard hall. I was in Warrensburg along about the first few days of December, about the third of the month, I think. I was in the restaurant sitting by the stove and Newt. was in there lying down flat of his back asleep; he was lying on the settee, right behind the stove, and Jerry was playing pool. When I say Jerry I mean John Rose, the defendant. He was teaching some trick with the pool balls. He came over and slapped Newt. on the head, but Newt. didn't wake up; then he went into his back pocket and took out his pocket-book and knife and some chewing tobacco. He told me he was going to give them back the next morning. He offered me a chew of tobacco, but I told him I didn't want it. That was in Warrensburg and Johnson county."

W. H. Palmer's testimony was in substance as follows:

"Live in Warrensburg and know Rose and Estes. Run secondhand store. On the third or fourth of December last Rose came to the store with a purse and knife and sold them to me. Was early in the morning. Some time after that Estes called and wanted to look at the pocketbook and asked where I got it, and I told him, and he says, 'It's mine,' and I showed him the knife and he said it was his.

"Cross-examination I was out in front of the store soon after Estes left and Rose came up and said, 'Did Estes say anything to you about them things?' and I says he claimed them, and Rose says, "They are his, and you let him have 'em.' Rose had only got twenty cents on them. I think Rose and Estes are chums; have known them for a good while and they...