State v. Rutherford

• Decision Date: 31 October 1899
• Parties: STATE v. RUTHERFORD.
• Court: Missouri Supreme Court

53 S.W. 417

152 Mo. 124

STATE v. RUTHERFORD.

Supreme Court of Missouri, Division No. 2.

October 31, 1899.

CRIMINAL LAW — LARCENY — INSTRUCTIONS — EVIDENCE — GENERAL REPUTATION.

1. An instruction, in effect, to convict defendant of larceny if he took and appropriated to his own use the property in question, is erroneous, since it omits the felonious intent essential to the crime.

2. Where six witnesses for defendant testified to his general reputation, he could not complain that more evidence of character from witnesses only casually acquainted with him for two or three months was excluded.

3. An instruction should not single out evidence of circumstances against defendant, and give it a marked prominence by calling the jury's attention thereto, and directing them to consider it in determining guilt or innocence.

4. Defendant is entitled to an instruction that, unless certain facts are shown, he should be acquitted, where on the converse of this the state asks for his conviction.

5. In a prosecution for larceny of money, where the evidence showed that defendant was found in possession of about the same amount as had been stolen, immediately after it was lost, evidence for defendant that some 12 to 18 months prior thereto he had received money from a sale of horses was too remote, and was also properly rejected if an offer thereof did not pretend to show that the identical money was still in his hands.

Appeal from circuit court, Moniteau county; D. W. Shackleford, Judge.

James B. Rutherford was convicted of larceny, and he appeals. Reversed.

Moore & Williams and W. M. Williams, for appellant. Edward C. Crow, Atty. Gen., for the State.

GANTT, P. J.

The defendant was indicted at the January term, 1898, of the Moniteau circuit court for grand larceny. He was duly arraigned, and at the September term, 1898, was tried and convicted, and sentenced to the penitentiary for two years. The evidence in behalf of the state very conclusively showed that on the 3d day of December, 1897, a package of money, containing $500, was stolen from the safe of the People's Bank of Tipton, Mo. Roy F. Bane was the cashier of said bank, and testified quite positively that on the afternoon of December 3, 1897, there were five packages of money, each containing $500, in the bank's safe, and that afternoon he made up another, or sixth, package, containing $500, and placed it upon the top of the other five packages in the safe. He testified that defendant was a life insurance agent, and was in the habit of frequenting the bank. On this particular afternoon he came in about 4:30 o'clock. The cashier was busy. Defendant came behind the counter. About 5 o'clock it became so dark it was necessary to light a lamp. The defendant, according to the cashier, offered to assist him in any work that he could do; said they would do the work and get out of the bank. The cashier went to the front counter to count the cash and at that time defendant asked him if he was through with the books, and the cashier answered, "All but one." Thereupon defendant said, "I'll put them in the vault for you, and we will get out, and go out of the bank." Thereupon defendant made three or four trips into the vault to place the several books in their proper places. When the cash was counted, the cashier found he was out of balance about $60, which item he found next morning. He requested the defendant to hold the light while he put the cash in the safe and set the time lock. The cashier did not discover any loss that night, but next morning, about 10 o'clock, he discovered that the last package he had put in the safe had been abstracted. His father was vice president of the bank, and he reported the loss to him. He also saw the city marshal, Mr. Clark, and informed him of his suspicions that defendant had taken the package. That afternoon defendant came into the bank to see the cashier about collecting some premiums on a policy, and while there the marshal came in and said to the cashier, "Have you said anything to Mr. Rutherford about this matter?" The cashier said he had not, whereupon defendant was told of the loss, and their suspicion that he had taken the money. He denied all guilt, and then the officer said he would have to search him, and asked him to walk into a back room of the bank, whereupon the defendant said: "I'll tell you how much money I have got on my person. I always carry money about me." He then produced $165.35. He first said he had $200, and, after he had produced the $165.35, Clark inquired where the balance of the $200 was, and he said: "I paid $25 for a suit of clothes to Henry Lutz this morning, and gave my sister $10 last night. She wouldn't charge me any board, and I made her a present of ten dollars." The cashier was then called to the front, and the defendant said to Clark he was not guilty of that, and did not want his folks to hear of it. Clark told him Mr. Bane wanted his $500, too. He said, "Well, I am not guilty." When he got to the door, Clark stepped up to him, and defendant turned around and said, "I am not guilty of stealing that money." Clark said, "Mr. Rutherford, this is a part of the bank's money, and nobody got that money but you." At that point defendant fainted, and fell over on the floor. He was revived, and then Clark told him he wanted to go and search his room, and, according to Clark and Bane, he said he did not want him to do it. He wanted to go home, and, after he was home a little while, Clark could come up, and he would have his sister let him in, and he could search his room. Finally Clark told him he would attend to that. Defendant said: "Don't you go search my room. You have no right to search my room without a search warrant. I forbid you searching my room unless I am present." The elder Bane and Clark then left defendant at the bank, and went to Mr. Newkirk's house, where defendant roomed; Mr. Newkirk being his brother-in-law. In a closet in defendant's room (on a shelf that could only be reached by standing on a chair), rolled up in a handkerchief, the elder Bane found $295. Mr. and Mrs. Newkirk were present when the money was found. The marshal then came out, and saw the defendant pass Mr. Newkirk's house and come around by an alley, and he headed him off and arrested him. Defendant asked to let him give bond, and the marshal agreed to do so, and took him to the city hall. Mr. Newkirk came to the hall, and defendant said: "France, I want you to go my bond. They have got me arrested here. I am not guilty of the charges they have got me arrested for." Mr. Newkirk, according to the state's evidence, said, "It appears very suspicious." Rutherford said, "What looks suspicious?" Mr. Newkirk answered, "Why, the amount of money found on you, and the amount they found in your room." Defendant said, "They didn't find any money in my room." Mr. Newkirk said, "They did." Defendant said, "Who found any money in my room?" Mr. Newkirk answered, "Mr. Bane and Mr. Clark, there." "Well," he said, "if there was any money found in my room, somebody else put it there; I didn't." Defendant denies this story, and says that he said he did not know it (that is to say, did not know they had found the money), but says he did not disown the money, but says it was his own money. The state offered much evidence tending to show that, immediately before the alleged larceny, defendant had no money; that he was indebted for board, and other small bills; and statements tending to show he had no means of consequence. The defendant offered evidence tending to show he had earned $425 as insurance agent; that some two years prior to this affair he had sold two horses for $150; that he had money on his person which he had saved. He offered evidence of previous good character for honesty and integrity.

At the conclusion of the testimony both ...