State v. Smith

• Decision Date: 31 October 1865
• Parties: THE STATE OF MISSOURI, Respondent, v. HENRY S. SMITH, Appellant.
• Court: Missouri Supreme Court

37 Mo. 58

THE STATE OF MISSOURI, Respondent,

v.HENRY S. SMITH, Appellant.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Louis Criminal Court.

Krum & Shreve, for appellant.

While the indictment contains thirteen counts, the 1st, 2d, 3d, 8th 11th, and 12th counts were withdrawn from the jury; the 4th, 5th, 6th and 10th counts contain the same material averments, all charging a joint receiving of the stolen property by three different persons, varying only in the allegation of the ownership of the property without naming the thief; the 7th and 13th counts contain a joint charge of receiving property which had been embezzled, knowing it to have been so embezzled, varying only in the ownership.

The first question which presents itself is: If parties are jointly indicted for receiving stolen or embezzled property, must the allegata and probata correspond in this as in other cases? The technics of the law require it, as the authorities cited sufficiently show. Does not the philosophy of the law also demand that proof shall be made that whatever, possession the parties may be shown to have in the property stolen was a joint possession, not an individual possession? (See authorities cited in Regina v. Wiley, Br. Cr. Cas. 6-43; 2 Eng. L. & Eq. 532; Rex v. Hartwell, 7 C. & P. 476.)

The thief ought to be named as well as the murdered man. The statute equally requires it. (13 Ired. 338; 4 Yerg. 149; Lewin Cr. 117.)

It is not necessary to aver in an indictment for receiving stolen property that the principal or thief has been convicted, nor to prove it; but it is clearly, on principle and our statute, incumbent on the prosecution to charge and prove the principal. (§ 44, p. 58.)

II. The admission by the court of the declaration of Charles Noyes to the witness Hard, and by him detailed in evidence before the jury, it is submitted was great error--an error in which it is difficult to understand how the court below could have fallen; its admission subversive of the first rules of evidence; it is hearsay testimony and cannot be tortured into anything else. It permits the declarations of a co-defendant, of a party jointly indicted, jointly impleaded in crime, to become evidence against such co-defendant, such jointly impleaded party, in his absence--some of the declarations being anterior, and some subsequent to the commission of the offence. This would not be tolerated even in a case of conspiracy. In support of this the court is referred to Whart. 295-7; 15 Mo. 168; 29 Mo. 32-50; 34 Mo. 85.

It was incumbent on the State to prove that the money was stolen before defendant could be convicted of its felonious reception. But it must be proved by legal testimony, not by the declarations of other parties; and the statement of Noyes to witness Hard was no more testimony than if some other person had made the statement. No conspiracy between Noyes and defendants is even pretended, much less proven.

The admission of this testimony prejudiced the jury against the defendant. It tended to connect the defendant with the transaction in all its enormity, when he knew nothing of it in fact. The admission of such testimony is most prejudicial; it cannot be erased from the jury even by instruction. Like the blood on Macbeth's hands, it will incarnadine a sea of water. This court has repeatedly warned against the dangerous and pernicious practice of admitting testimony which may prejudice the defendant before the jury. (See authorities cited.)

Lackland, Cline & Jamison, for respondent.

By the statutes of the State the receiving of stolen goods, knowing them to have been stolen, is made a substantial felony, and it can be joined in the same indictment with counts for burglary, larceny and embezzlement. (R. C. 1855, § 23, p. 1176, art. 3, §§ 19 & 22, and art. 9, §§ 14, 15, 16 & 18; 16 Mo. 550.)

The true test of practice in the joinder of counts in the same indictment is: if the offences are of a different nature, and the same plea may be pleaded, and the offences are punished by its law in the same manner, they can be joined, although our courts always prevent the too free mode of joining counts for totally distinct classes of cases in the same indictment, although plead to and punished in the same manner, (as rape and robbery,) for that it might embarrass the defendant in his defence, or cause undue prejudice against him before the jury. These reasons, however, do not apply when the pleader adopts a variety of counts in the same indictment for the purpose of meeting the evidence on the trial, and when all of the counts, though charging different offences, evidently refer to the same transaction. This is a latitude always indulged in by our best and most accurate criminal pleaders, and indeed was absolutely necessary to be adopted for safety, before the enlargement of our statutes of jeofail, which the court will see, from the foregoing references, have become so liberal that the criminal pleader can charge a delinquent with one offence, and at the trial, without amendment, acquit him of that and convict him of another and different offence. The accused ought therefore not to complain of the pleader in this cause, for having beforehand given him his indictment, or full, complete and formal statement of the crime of which he was found guilty. (Wheat. Cr. L. 667.)

What criminal pleader could contend for this proposition when all indictments and each count, although framed against many defendants, have ever been regarded as joint and several? and in fact this is the first time in the history of our practice that we have ever heard a contrary doctrine contended for. We are, of course, aware that each count in this indictment embraces a single substantive felony, and that in all cases the evidence introduced under a single count must be confined to a single transaction; and if the transaction involves the guilt of all the defendants under, that count, then all must be convicted; but if it does not, then those only are properly convicted who are guilty; and if there be two or more counts, one of the defendants may be convicted on one count, while the other may be convicted on the other. Here the court must perceive that there can be a joint charge in the different counts of the same indictment against two or more defendants, with a several conviction against each upon separate, distinct, and substantive felonies, which are properly joined in the same indictment under the rules of law heretofore cited.

If this be true, then the argument of the counsel for the accused is not only circular and therefore vicious, but also suicidal within itself. There is but one receiving in proof and that was committed by the accused, and the verdict is general and announces his guilt. He might as well claim his discharge because the evidence did not show that some one else, who was a total stranger to the record, was not also jointly guilty with him. (Regina v. Davey & Gray, 2 Eng. L. & Eq. 532; 38 Eng. Com. L. 121 & 157; Regina v. Smith, 33 Eng. L. & Eq. 531.)

The next and only remaining point to be noticed in this case: was there any error in the admission of evidence on the trial? To maintain the charge of receiving against the accused, it was incumbent on the State to prove the original taking as well as the guilty receipt; and hence all matters, manipulations, and plans, connected with the robbery, were competent proof; and for this purpose the actors were competent witnesses against the receivers; and all that was done and said by them in perfecting and executing this scheme was part of the res gestæ and proof, and, although the accused was not present at the commission of the offence, and stands here to-day convicted of a separate and distinct offence made by our law a substantive felony, yet for all the practical purposes of the trial, the case still stands as it did at common law, where the receiver was regarded as an accessory after the fact. The rules governing the competency and production of the evidence remain the same, except that no conviction or outlawry need be alleged or proven to secure the conviction. The office he undertakes to perform for his co-defendants is to secrete the fruits of their crime.

We do not contend that the body of the original felony could be proven by the confession of the principal actors, thereby dispensing with proof aliunde. Nor has this been done in the case at bar. proof has been made of all that has been done by the different actors, from the original conception of the crime until its final consummation. And the accused now complains of the court below for permitting Hard, the accomplice, to state what he and Charles Noyes said to each other about the robbery whilst engaged in the shifting scenes and transactions which go to make up its history.

It is unnecessary to refer to authorities to support the rulings of his honor, the nisi prius judge, on this point, for the reason that, whether they were proper or improper, they are wholly immaterial to the defendant. He was in nowise prejudiced or affected by the proof; it could neither mislead nor prejudice the jury in passing upon the guilt or innocence of the accused. This court has repeatedly decided that a judgment will not be reversed because irrelevant testimony was admitted, unless it is calculated to mislead or prejudice the jury, and the rule in criminal cases is the same in this particular that it is in civil cases. (McDermott v. Barnum, 19 Mo. 204.)

LOVELACE, Judge, delivered the opinion of the court.

Several errors are complained of by the defendant, but they may all be properly discussed under four heads: 1. The indictment charges the defendant with receiving stolen property, knowing it to be stolen, without naming the thief; 2. The indictment charges the defendant, jointly with Charles Noyes and Friend Noyes, with receiving the property, when the evidence tends to prove that the defendant alone received it; 3. It is complained that the court...