State v. Wyatt

• Decision Date: 05 November 1894
• Citation: State v. Wyatt, 27 S.W. 1096, 124 Mo. 537 (Mo. 1894)
• Parties: The State v. Wyatt et al., Appellants
• Court: Missouri Supreme Court

27 S.W. 1096

124 Mo. 537

The State v. Wyatt et al., Appellants

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Buchanan Criminal Court.-- Hon. Silas Woodson, Judge.

Affirmed.

M. G. & J. Moran for appellants.

(1) The evidence of what the officers did, and the property they found in the clothing of the Miller woman and at her house in the absence of defendants, and when they were in jail was inadmissible and misleading.State v. Wolff,15 Mo 168;State v. Castor,93 Mo. 242;State v Owsley,111 Mo. 450;3 Greenleaf on Evidence, sec. 33;Wharton's Criminal Evidence, sec. 758.(2) The possession must be personal; must be exclusive; must be recent; must be unexplained; and must involve a distinct and conscious assertion of property by the defendants.Authoritiessupra.The evidence admitted in this case is wholly wanting in any one of the above requirements, and no doubt did the defendants an incalculable amount of injury.(3) The evidence on behalf of the defendants showed that they were not present at the place where the alleged robbery was committed, and the court should have instructed the jury on this phase of the evidence.R. S. 1889, sec. 4220, and authorities thereunder cited.(4)The state did not prove that the property was found in the possession of the defendants.The proof was that the house where the goods were found was the dwelling house of the Miller woman, and that the defendants were there as guests of the woman.This evidence surely had a powerful effect upon the minds of the jury, and no doubt, forced them to an improper conclusion, and should not have been admitted.State v. Wolff, supra;State v. Floyd,15 Mo. 349;State v. Rothschild, 68 Mo. 52.

R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.

The bill of exceptions in this case was not filed within the time allowed by the court.With the first day of September, the record in this case closed, and the mere fact that the parties agreed that the time should be extended, will avail defendants nothing, in the absence of an order of the court, entered of record, nor will the memorandum made by the clerk in vacation be sufficient to extend the time.This cause presents the identical proposition wisely ruled against the defendants in State v. Ryan,120 Mo. 88.There is, therefore, no bill of exceptions legally preserved or presented, and this cause must be determined upon the record proper, from which no error appears.State v. Clark,119 Mo. 426.The indictment is in the usual form, following the language of the statute creating the offense and clearly charges the crime of which the defendants have been convicted.R. S. 1889, sec. 3531, The judgment should, therefore, be affirmed.

OPINION

Gantt, P. J.

At the March term, 1893, of the Buchanan criminal court, the defendants were jointly charged in an indictment containing two counts: First, with having with force and arms robbed one James McGovern of the sum of $ 12; second, with having robbed James McGovern by putting him in fear of immediate injury to his person, which indictment was duly returned, signed, attested and filed, and upon which were indorsed the names of the witnesses for the state.After arraignment the defendants asked for and were granted a severance, which was afterwards, by agreement, set aside, and the defendants jointly tried, convicted, and their punishment assessed at six years' imprisonment each in the penitentiary.After unsuccessful motions for new trial and in arrest, defendants were sentenced and judgment rendered.

Defendants on June 8, 1893, filed their affidavit for appeal, whereupon, by agreement of parties, the court entered of record an order that the defendants be granted leave to file bill of exceptions on or before the first day of December, 1893.The following written agreement appears in the transcript, bearing date of August 31, 1893:

"And afterwards, to wit, the thirty-first day of August, 1893, the defendants being unable to file their bill of exceptions, the time for filing said bill of exceptions was extended to the first day of October, 1893, by the following written agreement, which said agreement was, on the thirty-first day of August, 1893, filed in the case.

"In the criminal court of Buchanan county, Missouri.

"The State of Missouri, Plaintiff,

v.

Arnold Wyatt and Charles Hughes,

Defendants."

"It is hereby mutually agreed by and between Romulus E. Culver, prosecuting attorney of Buchanan county, Missouri, and M. G. Moran, attorneys for the above named defendants, that the time for filing the bill of exceptions in said cause heretofore agreed upon, shall be extended until the first day of October, 1893.

"Romulus E. Culver,

"By W. B. Norris, Ass't.

"M. G. & J. Moran,

"Attorneys for defendants."

McGovern, the prosecuting witness, swore that on the night of April 8, 1893, he was robbed by two men; that they took his pocket book, $ 12 in money and other coins, a watch charm and some other things from his person against his will.About 12 or 1 o'clock of the same night the defendants were arrested at the house of one Irene Miller, who is a woman...