State v. Wolff

• Decision Date: 31 October 1851
• Citation: 15 Mo. 168
• Parties: THE STATE OF MISSOURI v. WOLFF.
• Court: Missouri Supreme Court

15 Mo. 168

THE STATE OF MISSOURI

v.WOLFF.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

This was an indictment against Michael, Christopher, and Valentine Wolff and Josephus Pennel, for grand larceny of oats and glass; and the defendants were also charged upon the second count, with receiving the same, knowing them to have been stolen. The defendants, Christopher and Valentine Wolff severed, and were tried separately from Michael Wolff. The evidence went to show, that various articles of personalty had been lost and stolen from a certain neighborhood, and that many of these articles were found in the house at which the defendant, Chris. Wolff, and Pennel were found. On the trial, defendant offered co-defendant, Michael Wolff as a witness in the cause, and the State objected, and the objection was sustained by the court. The defendant below prayed the court for a new trial, which was overruled by the court, excepted to by the defendant, and an appeal taken to the Supreme Court.BLENNERHASSETT & SHREVE, for Appellant.

I. The appellant prays this court to revise and remand this cause. 1. Because the evidence was insufficient to warrant the verdict. It will be seen by that evidence, that four persons were indicted, wholesale; that one was never arrested, and that against two of the others there was not a tittle of evidence; and that against the one committed, Christopher, the only evidence was, that when he saw several officers approaching him, while at work, chopping wood, he ran; but when arrested, and asked why he ran, said because Pennel told him to do so. 2. Because the property charged to have been stolen, was found with other stolen property, at the house at which the defendant, Christopher, was, although it is shown that he had been there but a short time, and in the capacity of a hired hand. It is insisted that this court will, and properly may revise a verdict, manifestly contrary to evidence, or when the evidence is so utterly insufficient that it can be easily gathered from the case, that prejudice had much to do with the verdict. Large amounts of property of various kinds, are shown before the jury to have been stolen, although objected to by the defendant below; all well calculated to prejudice, while it furnished no legal evidence of defendant's guilt.

II. The appellant, for second cause of error, says, the court erred in its instructions given and refused. The court first permitted improper evidence to go to the jury, and after it has had the only effect that it could have had, to-wit: to prejudice the defendant's case before the jury, attempts to cure the error by instruction. Such a course deprives the defendant of a fair trial, and he therefore objects to the first instruction. “The jury will disregard all testimony relating to other property than that set forth in the indictment, which was not proved to be stolen property.” The second instruction given by the court is absurd. Two defendants are upon trial, and the court instructs the jury that if either of the defendants did steal, take and carry away, &c., that they ought to find the defendant guilty, &c. See second instruction given. The 4th instruction assumes, that if the defendant ever had possession of any of the property charged, he is bound to account for that possession. This instruction precludes the right of the defendant to have possessed the property, however honestly, even before it is alleged to have been stolen. It also throws the burden of proof on the defendant to explain the possession, not only if he had it himself, but if another person (Pennel) had. It is suggested that the Supreme Court might learn the inferior court some fitness of expression, that juries might not be ever misled by the unfortunate phraseology of the officer authorized to instruct. The instruction asked by the State's attorney, “that if they believe one of the defendants guilty, they can state so, though they cannot agree as to the guilt of the other.” The Supreme Court have repeatedly decided that it is error to instruct the jury that they can find a defendant guilty without assigning the punishment. Rev. Code, 1835, p. 493; McGee v. The State, 8 Mo. R. 495 and subsequent. The defendant is unable to find any legal objection to the first instruction asked for, but great propriety. The overruling of the second instruction asked by defendant, was error, and fatal to the case. The court thereby, in effect, say to the jury, that although the house and premises upon which the stolen property was found, belonged to another, yet, if the defendant was hired to him, that is sufficient evidence to convict the defendant; a strange sequitur.

III. The third error assigned, is the exclusion of testimony of the witnesses, Michael Wolff and Valentine Wolff, jointly indicted (as any one else might have been), but who severed on the trial. For a series of years, this point was considered settled in this State, by the decision in 6 Mo. R., and up to the present case, the courts have uniformly, in obeisance to that decision allowed a co-defendant, not upon trial, to testify; and the court in which this case was tried, in trying the case which immediately preceded it, after debate upon the point, decided that a co-defendant, not upon trial, could testify, and did testify, in the case of The State v. Pogue, for an assault to kill; but the same court denied the right in the case at bar. The counsel are at a loss to discover the reason, except the reason be without a difference. We are aware that the question has been somewhat vexed, and differently adjudicated, but think, aside from its absolute settlement in our own Reports, that reason and justice warrant the right; and, perhaps, no case can be found, where a co-defendant has been acquitted, solely upon the defendant's testimony. The State is allowed to use a co-defendant to testify against a co-defendant, and a premium offered him to do so--his own liberty, which is always given, if he swear with skill and ability against his co-defendant. And shall it be said we are retrograding in the merciful administration of the law? But again, is it not apparent how oppressive the rule enforced may be? The State can indict every one present, who would aid to establish the innocence of the defendant, and thus deprive every one of testimony in his behalf, and then use others to convict. The counsel have known most flagrant cases to occur in the exercise of this power. On the other hand, the right given, at best, places a co-defendant's testimony as doubtful, and it goes for what it is worth, but may sometimes serve to expose what could be known in the nature of things, to no other person. The court is referred to 6 Mo. R. 1, Garrett v. The State.

IV. The fourth error assigned is, that the court below should have granted the defendant a new trial. If there be any force in the positions assumed by the defendant then the court erred in refusing a new trial; but especially, when the “newly discovered evidence” was presented to the court, the pertinence and importance of which will be shown by reference.

McNally, 55, Rex v. Ellis; 2 Russell on Crimes, 597; 1 Kelly, 617; 5 Esp. 154; 1 Chitty, 605; Roscoe's Ev. 118; 2 Hale, 218, 305; United States v. Henry, 4 Wash. 429.

LACKLAND, for The State.

I. The court did not err in admitting testimony to show that the defendant had possession of stolen goods, other than those mentioned in the indictment. The defendant was charged with the larceny of the property mentioned in the indictment, and also with receiving the same, knowing them to have been stolen. For the purpose of establishing guilty knowledge, it is competent to prove that the defendant received other stolen property, besides that mentioned in the indictment. Wharton's Cr. L. 418; Rex v. Dunn, 1 Moody C. C. 146; 2 Russell on Crimes, 251.

II. The court did not err in refusing to allow the witness, Carlan, to state under what circumstances he saw defendant at various points of the city of St. Louis, or what he was doing, because this was entirely irrelevant. Such evidence is inadmissible, to prove general reputation for honesty or good character. It is general reputation among those who know defendant, that constitutes general character, and this cannot be proved by proving particular facts, as where defendant was seen, and what he was doing. Wharton's Cr. L. 171; 2 Phil. Ev. 469; 2 Stark. Ev. 304.

III. There was no error committed by the court in refusing to give instructions asked by the defendant. 1. The record does not show that any election was made, as is stated in said instruction. So far as that in concering, the instruction merely presents an abstract principle of law, not applicable to the case, if correct. 6 Mo. R. 6; 10 Mo. R. 354. The latter part of the instructions set forth the proposition, that the defendant cannot be guilty unless he actually stole; negativing the idea of all constructive stealing. 2. For the same reason the second instruction asked for by defendant, was rightfully refused. There was no proof tending to show that the defendant was the hireling of Pennel; and the court is not required to declare the law arising upon an assumed state of facts, when there is no proof tending to establish them. Suppose he was the hireling of Pennel, and stole for a stipulated price per day or month, having no interest, directly, in the property stolen; this, it seems to us, would be larceny. The instruction does not, therefore, contain good law, if it were applicable.

IV. The court properly refused to allow the witnesses, Michael and Valentine Wolff to testify for defendant, because they were jointly indicted with defendant, and were parties to the record, and therefore incompetent. People v. Williams, 19 Wend. 377; State v. Mills, 2 Dev. 420; Campbell v. Commonwealth, 2 Va. Cases, 314; Commonwealth v. Marsh et al., 10 Pick. 57; People v. Bill, 10 Johns. R. 95; State v. Carr, 1 Cox's N. J....