State v. Wilson

• Decision Date: 08 June 1922
• Docket Number: No. 23430.,23430.
• Citation: State v. Wilson, 242 S.W. 886 (Mo. 1922)
• Parties: STATE v. WILSON.
• Court: Missouri Supreme Court

242 S.W. 886

STATE v.WILSON.

No. 23430.

Supreme Court of Missouri, Division No. 2.

June 8, 1922.

Motion for Rehearing Overruled June 19, 1922.

Appeal from Jackson Criminal Court, E. E. Porterfield, Judge.

Lewis Wilson was convicted of burglary, and he appeals.Affirmed.

Defendant was convicted in division No. 2 of the criminal court of Jackson county for burglary in the second degree and larceny.His punishment was fixed at two years in the penitentiary for each offense.After unsuccessful motions for a new trial and in arrest of judgment, he appeals.

The testimony for the state showed that the house of one W. E. Zahner, 3329 Broadway, Kansas City, Mo., was burglarized between 7:30 and 9 o'clock on the evening of August 11, 1920, and an iron safe, containing jewelry and other property of the value of several hundred dollars, taken therefrom.

The fact of the burglary and theft was discovered about 9:30 p. m., and a report thereof immediately made to the police department.About 11 o'clock of the same evening police officers arrested appellant and one Ernest McKown near Forty-Fifth street and Benton boulevard in said city.When arrested, appellant and his companion were in a Ford coupé automobile belonging to appellant, engaged in ransacking the safe taken from Zahner's house.The jewelry and other valuables were found in the possession of the accused and his companion.When the police approached appellant's car at the time of the arrest, it was standing without lights, and two revolvers were found in said car.

Appellant claims that he had been engaged in the taxicab business, and that his automobile had been taken without his knowledge, from a point in front of 1202 Grand avenue, while he was downstairs, below the restaurant at that number, playing cards, and that about 11 o'clock the said McKown telephoned him from Forty-Fifth and Benton boulevard, saying that he had appellant's automobile at that point and that he could not start it; that thereupon appellant took a street car for the place and had arrived about five minutes before the police arrested both of them.He said that he had no knowledge as to how the safe and its contents had gotten into his automobile.He explains the presence of one of the revolvers in his car by saying that he always had it in the car.

Complaint is not made as to the sufficiency of the testimony.Appellant claims that procedural errors entitle him to a reversal of the judgment.His assignments of error, with pertinent facts, will be discussed in the course of the opinion.

Horace Guffin and Gabriel & Conkling, all of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Sp. Asst. Atty. Gen., for the State.

REEVES, C.(after stating the facts as above).

1.On the day of the trial appellant filed his application for a continuance in accordance with sections 3996 and 3997, R. S. 1919.He claimed that he had been unable to procure the attendance of Ernest McKown as a witness in his behalf.McKown had been jointly charged with appellant, but on application of the defendants a severance had been granted.

The affidavit conformed in all respects to said section 3997, and showed that on the day before the trial a subpoena had been issued for the said McKown, placed in the hands of an officer in Kansas City, and a non est return made.It was shown that McKown resided in Kansas City and was under bond to appear to answer a charge against him for the same offense, but not at the time of this trial.The court overruled the application, and appellant assigns error.

After causing the subpoena to be issued for the said McKown, appellant's counsel did no more.No effort was made to ascertain whether he had left Kansas City, and, if so, when, and whether his return was expected, and, if so, when.Counsel could have easily obtained information concerning his whereabouts and should not have placed full reliance upon the mere non est return of an officer.It did not appear that due diligence had been used as required by law, and, moreover, the matter of granting a continuance, under such circumstances, rests largely in the discretion of the trial court, and its action upon such application will not be disturbed unless it is obvious that its discretion has been unsoundly or oppressively exercised.State v. Burgess(Mo. Sup.)193 S. W. 821;State v. Salts, 263 Mo. 304, 172 S. W. 373;State v. McWilliams, 267 Mo. 437, 184 S. W. 96;State v. Weber, 272 Mo. 475, 199 S. W. 147;State v. Cain, 247 Mo. 700, loc. cit. 705, 153 S. W. 1039.

2.The verdict of the jury was signed by O. B. Mears as foreman.The record shows that C. B. Mears, and not O. B. Mears, was a member of the jury.Appellant asserts that, in view of this circumstance, the verdict is void and will not support a judgment.This variance in an initial in the name of one of the jurors is wholly inconsequential.The jury had been selected, heard the testimony, returned its verdict, and was polled, and this slight error, perhaps typographical, is of no consequence, as it does not prejudicially affect appellant.State v. Lynes, 194 Mo. App. 184, loc. cit. 193, 185 S. W. 535;16 C. J. 1100.

3.Appellant took the stand as a witness in his own behalf, and without objection exhibited in evidence an honorable discharge from the United States army, which showed that he entered the army on October 5, 1918, and was discharged therefrom November 23, 1918.He also offered in evidence as justification for carrying one of the revolvers found in his automobile a commission as deputy constable for the Seventh district of Kaw township in Jackson county.He performed no duty as deputy constable, using the office only as a permit to carry a pistol.

He was cross-examined with respect to convictions for prior offenses, and admitted that he had been convicted upon a charge of grand larceny committed in 1912, that he had been paroled as to said conviction, that said parole had been revoked, and that he had served a term in the state penitentiary, but denied other convictions to which the prosecuting attorney called his attention.

Appellant thereupon, as a part of his redirect examination, offered in evidence a pardon from the Governor, dated June 7, 1917, restoring his rights, privileges, and immunities as a citizen, which had been forfeited by a judgment and sentence to Imprisonment in the penitentiary, entered at the October term, 1913, in the criminal court of Jackson county"for the crime of burglary."

It was...