State v. Toohey

• Decision Date: 14 May 1907
• Citation: 203 Mo. 674,102 S.W. 530
• Parties: STATE v. TOOHEY.
• Court: Missouri Supreme Court

102 S.W. 530

203 Mo. 674

STATE v. TOOHEY.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. BURGLARY — TRIAL — EVIDENCE — QUESTION FOR JURY.

In a burglary trial, whether defendant was guilty held, under the evidence, a question for the jury.

2. SAME — EVIDENCE — POSSESSION OF STOLEN PROPERTY — PRESUMPTION.

The possession by defendant and his companion of the stolen property shortly after a burglary and larceny raises the presumption that defendant committed both offenses.

3. CRIMINAL LAW — QUESTIONS FOR JURY — WEIGHT OF TESTIMONY.

The weight of evidence in a criminal trial is to be determined by the jury.

4. BURGLARY — EVIDENCE — OTHER BURGLARY.

In a trial for burglarizing a Pullman car, evidence that another car coupled to it was burglarized about the same time was admissible; the property taken from both having been sold at the same time and place by defendant and his co-indictee.

5. CRIMINAL LAW — EVIDENCE — OTHER OFFENSES — PART OF SCHEME.

In a trial for burglarizing a Pullman car and stealing brass fixtures, evidence that defendant and his co-indictee were seen together later the same day in a locomotive cab, breaking off brass and picking it up, was admissible.

6. BURGLARY — EVIDENCE — POSSESSION OF STOLEN PROPERTY — SALE.

In a trial for burglary, evidence that about the time of the offense defendant and his co-indictee

went to witness' junkshop together, taking the articles alleged to have been stolen, and sold them to him, was admissible, though the property was partly or exclusively in the possession of the co-indictee.

Appeal from Circuit Court, Jackson County; Jno. W. Wofford, Judge.

Thomas Toohey was convicted of burglary, and he appeals. Affirmed.

Philip D. Clear, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

On the 11th day of September, 1906, the prosecuting attorney of Jackson county filed an information, duly verified, charging the defendant and one James Carrigan with burglariously breaking into and entering a certain railroad car called the "Bolton," the property of the Pullman Company, a corporation, and taking and stealing therefrom certain brass hat and coat hooks and a brass guard rail, and other articles of value then and there kept and deposited. A severance being granted the defendant, he was tried on the 1st day of October, 1906, and convicted of burglary, and his punishment assessed at three years in the penitentiary. After filing an unsuccessful motion for a new trial, defendant appealed.

The state's evidence tended to prove that on the 7th day of September, 1906, the Pullman Company was the owner of two sleeping cars, one called the "Bolton" and the other called the "Nubia," and that they were coupled together and standing on a side track in the Burlington yards, a little east of the roundhouse in Kansas City. On the morning of that day the doors of both cars were locked and the windows all down. At 2 o'clock in the afternoon of that day it was discovered that one of the doors of the Bolton, as also one of the doors of the Nubia, had been broken open, and a number of brass hooks and brass guard rails and several other articles had been torn from their fastenings and removed from the interior of each of said cars; the brass hooks being worth about $1.50 each. Between 6 and 7 o'clock of the same evening the defendant and his co-indictee, James Carrigan, were discovered by the night watchman in the cab of an old engine in the railroad yards, some distance away from where the cars Bolton and Nubia were standing. Defendant at the time was in the act of breaking off pieces of the brass attachments on the engine, using a hammer and chisel for that purpose, while Carrigan was picking up the pieces of brass that defendant had knocked off. The night watchman arrested the defendant, who on his way to the police station said that his name was Charley Smith, but he afterwards gave his true name. It appears from the evidence that about 4 o'clock on that afternoon the defendant and Carrigan went together to a junkshop owned by Epstein & Son, about a quarter of a mile distant from where the two cars were standing, and sold some of the stolen brass hooks and the brass guard rail. The articles in question were identified by several officers and employés of the Pullman Company as the stolen property. On behalf of the defendant, his aunt and his grandmother both testified that he was at home the afternoon of the...