State v. Stevens

• Court: Missouri Supreme Court
• Writing for the Court: Blair
• Citation: State v. Stevens, 147 S.W. 97, 242 Mo. 439 (Mo. 1912)
• Decision Date: 05 May 1912
• Parties: STATE v. STEVENS.

147 S.W. 97

STATE v. STEVENS.

Supreme Court of Missouri, Division No. 2.

May 5, 1912.

1. CRIMINAL LAW (§ 1159)—APPEAL—RECORD—CONVICTION.

Where the record discloses substantial evidence of defendant's guilt, the Supreme Court will not interfere on the ground of lack of evidence.

2. BURGLARY (§ 41)—EVIDENCE.

In a prosecution for burglary with explosives, evidence held to sustain a conviction.

3. CRIMINAL LAW (§ 351)—EVIDENCE—INCULPATORY CONDUCT—FEIGNING.

The feigning of insanity which of itself, if genuine, would constitute a defense to the charge, or at least a bar to the trial, is indicative of a disposition to evade justice and tends to prove guilt.

4. CRIMINAL LAW (§ 1056)—APPEAL—INSTRUCTIONS—NECESSITY OF EXCEPTIONS.

Instructions to which no exceptions were taken at the time they were given cannot be reviewed on appeal.

5. CRIMINAL LAW (§ 1037)—APPEAL—MISCONDUCT OF PROSECUTING ATTORNEY—RECORD.

Alleged improper argument of the prosecuting attorney cannot be reviewed where there is nothing in the record outside the motion for new trial to indicate what the offensive remarks were.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

Marcus H. Stevens was convicted of burglary with explosives, and he appeals. Affirmed.

W. F. Riggs, for appellant. The Attorney General and John M. Atkinson, Asst. Atty. Gen., for the State.

BLAIR, C.

The defendant was informed against jointly with Thomas Howard; the two being charged with burglary with explosives as that offense is defined in section 4526, R. S. 1909. On a trial separate and apart from Howard, defendant was convicted and sentenced to 25 years in the penitentiary, and has appealed.

The evidence showed that in the early morning of January 11, 1911, a saloon at 2404 East 18th street in Kansas City, Mo., was entered by burglars (by means of chiseling out a panel of a rear door), an iron safe blown open with nitroglycerin and some money stolen. A bottle containing a small quantity of nitroglycerin was found in the saloon building soon after the explosion in the building was heard. The safe was practically destroyed, being blown into pieces. The money stolen was taken from the back bar.

The evidence tending to connect defendant with the crime was to the effect that he and one Howard were, and for some time had been, rooming together on East 17th street in Kansas City, and that they were in the habit of leaving their room about 11 p. m. and returning thereto at 3 or 4 a. m. They were seen together at about 11 p. m. on the night of January 10, 1911, in the saloon of Henry Alpheus at 2400 East 18th street where they washed their hands, remained a few minutes and departed, followed out the door by the proprietor whose attention was attracted by the fact that Howard evinced some interest in the safe which stood in the saloon. When they left Alpheus' place they walked down toward the saloon at 2404, but were not seen to enter. At 15 minutes before 3 o'clock on the morning of the burglary they were both seen, not together, but near each other, at the corner of 18th and Olive streets (near the saloon subsequently burglarized) whence Howard went north past the corner and defendant along 18th street east toward the saloon at 2404. In about one half an hour the explosion in the saloon was heard, and about one minute thereafter Howard was seen in the alley in the rear of the saloon building, running away from it.

On January 13, 1911, defendant and Howard were arrested in a rooming house at 521 East 17th street in Kansas City. Two revolvers and cartridges, a chisel, a burglar's jimmy, some diamond pointed bits or steel drills, a carpenter's brace, an electric flashlight, two pairs of overalls, two caps, several sticks of dynamite, a skeleton key, a bottle of gun oil (said to be useful in drilling into iron and steel), and a glass syringe containing some dark liquid, were found in the room occupied by defendant and his companion.

After his arrest defendant seemed to be in great trouble and said "he had made a fool of himself." During the trial he cursed and reviled witnesses and officers, interrupting the proceedings with all manner of scurrility.

For the defense there was evidence that two or three weeks before the trial defendant began to indulge in violent outbursts, would...