State v. Yandell

• Decision Date: 05 March 1907
• Citation: 201 Mo. 646,100 S.W. 466
• Parties: STATE v. YANDELL.
• Court: Missouri Supreme Court

100 S.W. 466

201 Mo. 646

STATE v. YANDELL.

Supreme Court of Missouri, Division No. 2.

March 5, 1907.

1. JURY—PEREMPTORY CHALLENGES—NUMBER.

Rev. St. 1899, § 2619 [Ann. St. 1901. p. 1553], declares that if the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, the defendant shall be entitled to 20 peremptory challenges, and no more, and if the offense is punishable by like imprisonment, not less than a specified number of years, and no limit to its duration is declared, he shall only be entitled to 12. Section 1890 [page 1294] provides that a person convicted of burglary in the second degree shall be imprisoned for not less than three years, without declaring any limit for such imprisonment, and section 2379 [page 1461] declares that if any person convicted of any offense punishable by imprisonment in the penitentiary, etc., shall be subsequently convicted of any offense, if the subsequent offense shall be punishable upon a first conviction by imprisonment in the penitentiary for life or a term which might extend to imprisonment for life, then he shall be punished by imprisonment for life, otherwise by imprisonment for the longest term prescribed on a conviction of a first offense, etc. Held that, where accused had previously served a penitentiary term for burglary and larceny, he was punishable on a second information for burglary by imprisonment for life, and was therefore entitled to 20 peremptory challenges.

2. SAME—WAIVER.

Where accused made no objection to the panel of 30 qualified jurors drawn to try him, and did not claim his right to 20 peremptory challenges until the jury had been sworn a second time to try the cause after one of the jurors had been excused, his right to 20 peremptory challenges was waived.

3. CRIMINAL LAW—APPEAL—INSTRUCTIONS— OBJECTIONS.

Where it does not appear from the bill of exceptions in a criminal case that the instructions given were excepted to at the time they were given, they cannot be reviewed.

4. SAME—MOTION FOR NEW TRIAL—SCOPE— OBJECTIONS TO EVIDENCE.

Where no objection was made by defendant in his motion for a new trial to rulings on evidence, neither the admission nor the exclusion of evidence could be considered on appeal.

5. SAME—VERDICT—REVIEW OF EVIDENCE.

Where there was evidence justifying a finding that defendant was guilty of the burglary charged, a verdict to that effect, sustained by the trial court, would not be disturbed on appeal as against the weight of the evidence.

Appeal from Circuit Court, Douglas County; F. C. Johnston, Special Judge.

James Yandell was convicted of burglary and of being an habitual criminal, and he appeals. Affirmed.

J. S. Clarke, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

Under an information duly verified and filed by the prosecuting attorney of Douglas county, charging the defendant with burglary and larceny and with being an habitual criminal, defendant was convicted in the circuit court of said county on the 23d day of June, 1906, and his punishment fixed at imprisonment in the penitentiary for the term of his natural life. The offense was alleged to have been committed January 3, 1906. The building alleged to have been burglarized was a storehouse belonging to T. N. and F. M. Smallwood, from which various articles of dry goods, shoes, and jewelry, of the value of $94.45, were alleged to have been stolen by defendant. In due time after verdict the defendant filed motions for a new trial and in arrest, which were overruled, and he appeals.

The state's evidence tended to prove that T. N. and F. M. Smallwood were the owners of a store building situated in the town of Denlow, in Douglas county, Mo., and that on the night of the 3d of January, 1906, the doors and windows of said building were securely fastened. The next morning they discovered that one of the windows, which had been fastened at the top with a nail, had been prized open, and the window sash taken out and set on the ground against the side of the wall. Some shoes, some men's overshoes, two bolts of red flannel, one bolt of eider down, a hat, 55 finger rings, 4 watches, and some bracelets were missing; also 50 pennies and some blue pocket handkerchiefs —all of the value of $94. The evidence further showed that early on the evening of the burglary there had been a slight rain, and immediately afterwards there was a fall in the temperature, and the ground was frozen. Close to the window that was broken open there were found the tracks of a man going up to the window from the west. These tracks were made by a No. 8 shoe. Going away from the window, there were tracks made by a No. 11 overshoe. The tracks going to the window showed that the party making them did not wear overshoes. Two or three persons followed these tracks down the road for a distance of a quarter of a mile, where a small plank was found on the ground. This was the kind of a plank that was used by merchants to wrap cloth around. At that point the tracks of an unshod horse were seen on the ground, which indicated that the horse had been standing there for some time. The horse's tracks then extended on down the road toward the town of Norwood, and to within three miles of said town. The searching parties, in company with Constable Thompson, went on to the house of the father of the defendant. This house was searched, but none of the stolen property was found, and the defendant was not there; so the constable and his posse went to the residence of one Mattie Caudle, who lived about 250 or 300 yards from the Yandell home, and searched her house. On going in, these parties heard a man and woman talking in an upstairs room. The stairway runs up on the inside of the house, but the stairway door was locked. The officer demanded of the Caudle woman that she open the stair door, but she said it was nailed up. Just as the officer was about to break the door open, one of the parties saw the defendant running from the direction of said house. Constable Thompson and Mr. Martin took after him, called to him to stop three times, and fired a pistol once. The defendant continued to run, and the constable procured a horse, and finally overtook him, when the defendant tried to get a rock and assault the officer. The defendant was brought back to the Caulde house, and, when he saw some of the stolen property found in said house, he said: "What in the hell are you going to do with my overshoes? They are mine." Mr. Smallwood spoke up and said: "This lady says that they are her brother's." And the defendant again insisted that they were his. On being asked where he got them, defendant said: "Find out. You have got me. Now find out." The defendant stated to the officers that he was upstairs when he saw them coming, and jumped through a hole in the wall. In said house were found the two bolts of red flannel. One bolt was at the head of the bed, between the bed and the wall, and the other piece was at the foot of the bed, under the tick. There were also found two new pairs of shoes and one pair of stolen overshoes. The overshoes were No. 11, and were found in a closet. On the way to Norwood, the defendant said that the overshoes were not his. A short time before the burglary the defendant was at the town of Denlow, claiming that he wanted to rent a house for his sister to live in, and send her children to school. After being arrested, the defendant said that he had never been to Denlow, and knew nothing about his sister wanting to send her children to school. In taking the defendant from the town of Norwood to the county jail, the constable rode with him in a hack, in company with Mr. Martin. On the way, about two miles before they reached the jail, the defendant made some peculiar motions with his hands under the lap robe. These motions attracted the attention of the officer, for he thought the defendant was trying to slip his handcuffs. The next morning a penny was found in said hack on the side the defendant rode on. The next day the defendant was searched in jail, and 20 or 25 keys were found in his pockets; also some pennies and 3 blue handkerchiefs. At the point on the road where the defendant made the motion with his hands, the officer found a handkerchief of the same color, and also 11 pennies. About a quarter of a mile from the Yandell house, a man named Wes Jones was living, and Jones' wife is a cousin of the defendant. For some two weeks prior to the burglary the defendant had a trunk, which he kept upstairs at the home of Mr. Jones; he having formerly worked for Mr. Jones. On the night after the burglary, the defendant came to the Jones place, while Mr. and Mrs. Jones were away from the house, stayed a while, went upstairs, and left before bedtime. He took a grip away with him, saying he was going to see his brother. A few days afterwards the officers came to the Jones house and tried to open this trunk, but it was locked. As Mr. and Mrs. Jones did not have the key to it, the officers took an axe and broke it open. In the trunk were found some of the stolen rings, some knives, some razors, some bracelets, scarf pins, and watch chains wrapped up in a blue handkerchief, like the ones that were stolen. They also found a black hat in said trunk, which was identified as the stolen hat. The officers testified that this jewelry had tags on the same, and the tags were identified by the Messrs. Smallwood as showing their price mark.

While in jail, the defendant wrote the following letter:

"Ava, Mo., Jan. 10, 1906. Mrs. Mattie Caudle—Kind Friend: I thought I would write you a few lines to let you know that I am well, truly hoping those few lines will reach their destination and find you well. Well, Mattie, you know what you said; you ought to stick to what you said; there is no chance for me; be of good cheer. Write and tell me if you are coming down when I have my trial. Now, Mat., I will live and die for your sake;...