State v. Thornhill

• Decision Date: 19 May 1903
• Citation: 174 Mo. 364,74 S.W. 832
• Parties: STATE v. THORNHILL et al.
• Court: Missouri Supreme Court

74 S.W. 832

174 Mo. 364

STATE v. THORNHILL et al.

Supreme Court of Missouri, Division No. 2.

May 19, 1903.

GRAND LARCENY — INSTRUCTIONS — EVIDENCE — GENERAL REPUTATION OF DEFENDANTS — CROSS-EXAMINATION — PRIOR CONVICTION OF CRIME — VERDICT — FAILURE TO ASSESS PUNISHMENT SEPARATELY — EFFECT.

1. In a prosecution of two defendants for grand larceny the court charged that, if "the defendants were elsewhere than at the place of the alleged larceny at the time the same was committed," they should be acquitted. No effort had been made by one of the defendants to prove an alibi. The other defendant admitted he was on the train where the larceny occurred at the time, but introduced evidence tending to contradict the prosecuting witness' testimony that he had been with witness for some time prior thereto. Held, that the instruction was, if anything, too favorable to the defendants, and they could not object on the ground it did not permit the jury to acquit one defendant and convict the other.

2. Defendants each offered evidence that their general reputation for honesty and integrity was good. Held proper on cross-examination to ask witness whether he did not know they were generally reputed to be gamblers.

3. Under Rev. St. 1899, § 4680, providing that the conviction of any person of a criminal offense may be proved to affect his credibility, it was competent to show that one of the defendants, who had testified as a witness, had been convicted of gambling, it being a misdemeanor under section 2212.

4. Rev. St. 1899, § 2647, provides that when several defendants are jointly tried the punishment of each shall be separately assessed. Section 2649 declares that when the jury find a verdict of guilty, and fail to agree on the punishment, or do not declare such punishment by the verdict, the court shall assess and declare the punishment. In the case at bar the jury found both defendants guilty, and assessed "their punishment at two years in the penitentiary," contrary to section 2647. When the motions for new trial and in arrest were overruled, the court sentenced each defendant separately to the penitentiary for two years, the minimum punishment prescribed. Held, that the verdict assessing the punishment of both defendants together was, in effect, a failure to assess it, and the court's action was proper.

Appeal from Circuit Court, Barry County; Henry C. Pepper, Judge.

John Thornhill and another were convicted of grand larceny, and appeal. Affirmed.

George & Landis, D. H. Kemp, and Wear & McGregor, for appellants. Edward C. Crow, Atty. Gen., and C. D. Corum, for the State.

GANTT, P. J.

The defendants, John Thornhill and John Such, Jr., were prosecuted at the September term, 1902, of the Barry circuit court, on information filed by the prosecuting attorney for grand larceny, and convicted. From the sentence imposed they have appealed to this court.

The evidence on behalf of the state tended to prove that on the 2d day of April, 1902, William Z. Burton, an old man, 71 years of age, a farmer living in Miller county, Mo., took passage on a train of the St. Louis & San Francisco Railroad at Crocker, Mo., for South McAlester, in the Indian Territory. He had $40 in his pocketbook on his person. After the train had passed Springfield, and was near a station on said road known as "Republic," the defendant Thornhill came in, spoke to the prosecuting witness, and sat down by him. The two men began to converse. On learning that the prosecuting witness was going to South McAlester, Thornhill, who told the prosecuting witness that his name was Morgan, and that he was a brother to "Reverend John Morgan," also stated that he was going to South McAlester. The prosecuting witness had a widowed sister, who lived at South McAlester, and the defendant pretended to be acquainted with her. The defendant advised Burton that they would have to change cars at Monett, and that he would assist him in making the change there. They reached Monett, separated, and the prosecuting witness went to the depot, where he remained until his train was announced. When he got back on the train, and in the rear end of the coach, he sat down, and had only been there a moment, when defendant Thornhill tapped him on the shoulder, and said, "I will introduce you to the conductor," and they walked to the front end of the car. There he introduced him to defendant, representing Such's name to be Turner. Thornhill pulled out a $20 bill, and told his codefendant that he and the prosecuting witness wished a ticket for South McAlester. Such promptly and sternly remarked that he did not have the change. Thereupon Thornhill asked the prosecuting witness if he could not change the bill, and the prosecuting witness pulled out his pocketbook and opened it. It seems that the pocketbook was snatched from his hand by Such, who immediately ran away. The old man immediately began to bemoan his fate, and the defendant Thornhill attempted to silence him by saying that he ought not be so quick to charge robbery; that the train had not yet started, and that Such would return with his money. But the train did start within a moment, and Such did not return, and defendant Thornhill also left the car. The state introduced a number of witnesses who saw and indentified the three men, and who heard the exclamation of the old man, and Thornhill attempting to pacify him. On their part the defendants offered evidence tending to show that two other men, whom the testimony characterized "as confidence men," were the ones who committed the larceny. Thornhill also offered evidence tending to show that he did not board the train at Republic, and that he was in Monett during all the day. They both denied any connection with the crime, but the jury did not credit their statements, and found them guilty. Three grounds for reversal are urged by defendants.

1. Among other instructions given by the court is the following: "No. 3. The court instructs the jury that one of the defenses in this case is what is known as an `alibi'; that is, that they were not present at the time and place where it is alleged the crime was committed. Therefore the jury are instructed, if they believe from the evidence that the defendants were elsewhere than at the place of the alleged larceny at the time the same was said to have been committed, then the jury should find the defendants not guilty, and if, upon a full consideration of all the evidence in the case, the jury have a reasonable doubt as to whether the defendants were present at the time and place of alleged crime, they should acquit them." The objection made is that...