State v. Rothschild

Citation5 Mo.App. 411
PartiesSTATE OF MISSOURI, Respondent, v. JAMES S. ROTHSCHILD, Appellant.
Decision Date19 March 1878
CourtCourt of Appeal of Missouri (US)

1. The order of introduction of evidence is not a matter for exception; and it is not error to let in evidence that a witness has been tampered with, with the understanding that if the prosecution fail to connect the prisoner therewith, the testimony shall be taken from the jury. Upon failure to so connect the accused, the testimony should be taken from the jury by an instruction; but it is defendant's duty to ask such instruction; and if he neglects to do so, and the court fails to give it, this is not ground for reversal. If the defendant desires to exclude such evidence, he should require the prosecution to state for what purpose it is offered, and whether he expects to connect the accused with it.

2. It is proper to ask a witness who has testified to the bad character for truth and veracity of another witness, whether he would believe the latter under oath. But where the witness attacked has been fully impeached, and two other witnesses have been allowed to state that they would not believe him under oath, the refusal to allow the question to be asked a third witness is not ground for reversal.

3. Where the guilt of the accused is clearly made out by proper evidence, so as to leave no room for a reasonable doubt, the case will not be reversed because of immaterial error, which could not have prejudiced the accused.

APPEAL from St. Louis Criminal Court.

Affirmed.

J. G. LODGE, for appellant: The admission of testimony that a witness in the case had been tampered with, where there is a failure to connect the accused therewith, is error, and ground for reversal.-- The State v. Mix, 15 Mo. 153; The State v. Wolf, 15 Mo. 168; The State v. Marshall, 36 Mo. 400; The State v. Daubert, 42 Mo. 240. It is error to refuse to allow a witness, who has testified to the bad character of another for truth and veracity, to say whether from such reputation he would believe the latter upon oath.--1 Greenl. on Ev., sec. 461; Hamilton v. The People, 20 Mich. 173; Hillis v. Wilie, 26 Ohio St. 574.

L. B. BEACH, Circuit Attorney, for respondent.

BAKEWELL, J., delivered the opinion of the court.

Defendant was convicted of having committed grand larceny, by stealing $20 in money of the United States, and certain United States bonds of the value of $1,200, on Nov. 7, 1875. From this conviction he appeals to this court.

It appears from the testimony that, at the date named, defendant was barkeeper in a house of prostitution kept by his mother. The prosecuting witness, whilst drunk, dropped the bonds in the bar-room of the house in question, where they were picked up by defendant. The testimony of the prosecuting witness is to the effect that he had been drinking for two days; that he entered the bar-room in question, under the influence of liquor, some time before midnight, with $3,200 in United States bonds and about $30 in greenbacks in a pocket-book, which he carried in the breast-pocket of his coat. He had also some money in his trousers pocket, for current expenses. He passed the night drinking in Rothschild's bar-room. He remembered almost nothing of what passed; and, as to the greater portion of the time he was there, his mind is a perfect blank. He left the house about six in the morning; and soon afterwards, found that his pocket-book, with $2,000 in an inner compartment, was safe, but that four bonds, amounting to $1,200, were gone. The witness continued to drink, and did not entirely get over his debauch for two or three days. He suspected defendant; but, as he had been on the same evening in another house of the same character, he was not sure where he had lost the money. He was ashamed of the occurrence, and disposed to keep quiet about it. He went to the bar-room again, and had some conversation with defendant, but did not ask about the bonds, and defendant said nothing to him about the matter. His object in this visit was to regain his property; but he thought it policy not to ask about it directly. In his direct examination, he says that this interview with defendant was within a very few days after the loss. In his cross-examination, he says he is certain it was within a month.

One Samuels, a man of degraded character, who states that since the alleged larceny he has passed a term of six months in the work-house, as a pimp and associate of thieves, was indicted with Rothschild; but the case was nol. pros'd as to him, and he was used as a witness by the State. He swears that he was present when the prosecuting witness dropped his pocket-book, without knowing it, whilst falling on the floor, drunk. The defendant picked up the pocket-book, and placed it behind the bar; that the defendant, the prosecuting witness, and himself then went together to the neighboring market-house, where they separated; and that defendant afterwards told him that he had returned the pocket-book to the man who lost it. The witness saw some bonds in the pocket-book when it dropped.

The clerk of the Lindell Hotel testified that on the morning of the occurrence the accused deposited at the hotel, for safe-keeping, an envelope which he said contained $1,200 in bonds, which had been dropped by a drunken man; and that the defendant called for the package the next day. On cross-examination, he said that he fully believed that the package was called for the next day, but that it was possible that he might be mistaken as to the time, and it might be that it was not called for for a week or two. No record or memorandum of such deposits is kept.

The negro man who sweeps out the bar-room testified, for defendant, that the pocket-book dropped, and was replaced in the breast-pocket of the prosecuting witness by Rothschild; that after the man had gone out, Rothschild saw the bonds lying on the ground, and picked them up, and stated what they were, and said that he would leave them at the Lindell Hotel, and went out to do so. Samuels was not present at the time, having gone out a few minutes after the drunken man left.

Rothschild testified, in his own behalf, that he did not know the prosecuting witness by name, but had seen him before the night that he came into the saloon drunk; that he found the bonds on the floor, and thought they belonged to the prosecuting witness; that he ran out into the street, hoping to catch him, but he was out of sight; that he at once deposited them at the Lindell Hotel, and then consulted his lawyer, who told him that he had done well, and that the bonds would probably be called for; that he expected the loser would advertise, and examined the papers from day to day for some notice of the bonds; that he left the bonds at the Lindell Hotel till December,--three or four weeks; that he then withdrew them, and placed them in a wardrobe in a sleeping-room occupied by himself and a gambler named Howe, who also had a key to the wardrobe; they lay there on a shelf, exposed to the view of any one opening the wardrobe, until December 18, when Howe disappeared, and the bonds at the same time; that he made great efforts to find Howe, writing to detectives in other cities, and going to Cincinnati for that purpose himself, but that Howe could not be found; he did not notify the police of his loss, fearing it might get him into trouble. When asked why he feared trouble, he said, at first, that he had denied having the bonds, to some member of the police force; but afterwards said that he had not made such denial till after his indictment and the loss of the bonds. On the day he found the bonds, he mentioned the fact to other persons besides the hotel clerk and his lawyer, and showed the receipt for the envelope given by the hotel clerk to the boy who cleaned his sleeping-room, telling him of the occurrence. This boy was examined, and testified that he had access to the wardrobe, and saw the bonds on the shelf in the envelope, from about December 1 till the time Howe left. Rothschild further swore that the prosecuting witness never asked him for the bonds; that he did not know his name; that if he had asked for them he would have given them to him; and that he was pecuniarily responsible, and quite able to make good the loss after the bonds disappeared from his possession, but had never been called upon to do so.

On the trial, the witness Samuels, in his direct examination, testified, without objection on the part of the defence, that he left the State during the pendency of the prosecution, with...

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  • Pugmire v. Oregon Short Line R. Co.
    • United States
    • Supreme Court of Utah
    • December 11, 1907
    ...proof is not made, is a waiver of his right in the premises. (9 Enc. of Evidence, 243; United States v. Gardner, 42 F. 832; State v. Rothschild, 5 Mo.App. 411; Leipird Stotler, 97 Ia. 169; 66 N.W. 150; McCarney v. People, 83 N.Y. 408, 38 Am. Dec. 456.) McCARTY, C. J. STRAUP and FRICK, JJ., ......

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