State v. Zumbunson

• Decision Date: 28 October 1879
• Citation: 7 Mo.App. 526
• Parties: STATE OF MISSOURI, Respondent, v. HENRY ZUMBUNSON, Appellant.
• Court: Missouri Court of Appeals

7 Mo.App. 526

STATE OF MISSOURI, Respondent,

v.HENRY ZUMBUNSON, Appellant.

St. Louis Court of Appeals, Missouri.

Oct. 28, 1879.

Where, in a criminal prosecution, the attorney for the State, against defendant's objection, indulges in language calculated to excite prejudice in the mind of the jury, the fact that the trial court neglected to rebuke such language will not alone be sufficient ground for a reversal, if the case be otherwise correctly tried, and it appears that, under the law and the evidence, no other result than a conviction was possible without misbehavior of the jury.

APPEAL from St. Louis Criminal Court.

Affirmed.

J. G. LODGE, for appellant: The language used by counsel was a violation of all lawful privilege, directly calculated to prejudice the defendant, and is cause for a reversal.-- Ferguson v. The State, 49 Ind. 33; The State v. Smith, 75 N. C. 306; The State v. Reilly, 4 Mo. App. 392; The State v. Kring, 64 Mo. 591.

L. B. BEACH, for respondent: “It is for the trial court to determine whether counsel transcends the limits of professional duty and propriety.”-- The State v. Hamilton, 55 Mo. 520; The State v. Wieners, 66 Mo. 13; Loyd v. Railroad Co., 53 Mo. 509.

BAKEWELL, J., delivered the opinion of the court.

Defendant was convicted of grand larceny. The evidence tended to show that defendant, with George Bickel, Dattlesweig, and Irwin, confederated together to defraud the prosecuting witness of two horses. Each played his part in the plot, and they were all present together assisting in the perpetration of the trick. These men induced the prosecuting witness to enter the sale-stable of one Honig, in St. Louis, and whilst they were engaged with him in a pretended bargain for the horses, which the prosecuting witness refused to part with except for cash, defendant, on the pretence that the horses had been exchanged with Zumbunson by the prosecuting witness, for a pair of mules, went off with the horses, and in effect then and there stole them.

On the part of the State, Thomas Dowling, a policeofficer, testified that at the date of the larceny he was a police-officer of St. Louis, whose beat was the corner of Fifth and Carr Streets; that he knew Bickel, Dattlesweig, Irwin, and Honig; that Zumbunson was a “capper” in the employ of Honig, and that the men named were all in company together in the employ of Honig, at 1022 North Fifth Street, on the day in question; that he had seen the men in Honig's employ every day, and had on several occasions seen Honig give them money to go and “make caps.”

In his closing address to the jury, the attorney for the State used the following language, against the objection of defendant:--

“The fellow belongs to the worst gang of horse-thieves that ever infested this or any other city. They are worse than burglars and highway robbers. They have done more to injure St. Louis than any other class of criminals that ever existed here. He belongs to a gang of horse-sharks of whom Dan Honig is the head. They have about ruined the horse trade here, and make it their business to rob every countryman that comes here. I thank God the gang is about broke up. You have it in your power to punish them now and vindicate the law. If you do not find defendant guilty, never do you dare complain when you hear of these robberies committed by this gang hereafter. If you do not convict him, you say to them all, go on with your thieving and robbing; we give you by our verdict a full license to do so.”

Under our system of practice, the trial judge is not allowed to sum up, review the evidence, or call the attention of the jury to the real points in issue. The instructions given must be in writing, and given to the jury before the closing argument of counsel. Where counsel clearly...