The State v. Cohen
| Decision Date | 06 January 1914 |
| Citation | 162 S.W. 216,254 Mo. 437 |
| Parties | THE STATE v. HARRY J. COHEN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.
Affirmed.
Boogher & White and Barclay, Fauntleroy, Cullen & Orthwein for appellant.
(1) The court erred in refusing to give an instruction as to the testimony of an accomplice. The word "accomplice" means simply a participator in crime, and at common law it included all the particeps criminis, whether principals in the first or second degree, or accessories. Russ. Crimes (9 Ed.), 49; 4 Blk. Com. 27; Johnson v. State, 2 Ind 652; Hudspeth v. State, 50 Ark. 534; Cross v People, 47 Ill. 152, 95 Am. Dec. 474; State v. Roberts, 15 Ore. 187; Words and Phrases, title "Accomplice." Schilling v. State, 106 S.W. (Tex. Cr. App.) 357; State v. Kellar, 73 Am. St. 777; Johnson v. State, 125 S.W. (Tex. Cr. App.) 18; People v. Holden, 111 N.Y.S. 1019. If the facts are not in dispute, whether or not a witness is an accomplice is a question for the court; but if the evidence is conflicting, the issue should be submitted to the jury with proper instructions. People v. Kraker, 72 Cal. 459, 1 Am. St. 65; State v. Schlagel, 19 Iowa 169; State v. Carr, 28 Ore. 389; Williams v. State, 33 Tex. Cr. 128, 47 Am. St. 21. The jury must be reasonably convinced that a witness is an accomplice before the rules of accomplice testimony become applicable. Ross v. State, 74 Ala. 532; Childress v. State, 86 Ala. 77. If his testimony raises a strong presumption that he is an accomplice, this has been held sufficient. Pool v. State, 25 Tex.App. 661. The jury may consider a witness an accomplice without proof beyond a reasonable doubt. Commonwealth v. Ford, 111 Mass. 394. (2) The court committed palpable error in giving instructions for the State, in that it failed to submit to the jury the question of whether the defendant, if he received the property, did so with a fraudulent intent. This is the very gravamen of the offense. State v. Sweeten, 75 Mo.App. 128; State v. Moore, 101 Mo. 320; State v. Campbell, 108 Mo. 611; State v. Warren, 109 Mo. 432; State v. Gibson, 111 Mo. 102; People v. Walker, 198 N.Y. 329; Jester v. Lipman, Wolfe & Co., 67 P. 103; Arcia v. State, 26 Tex.App. 193; Darrah v. State, 90 N.W. 1124; Goldsberry v. State, 92 N.W. 912; Pickering v. United States, 101 P. 123; Rapalje on Larceny and Kindred Offenses, secs. 311, 325; People v. Johnson, 1 Parker's C. C. 564; People v. Avila, 43 Cal. 196; State v. Caveness, 78 N.C. 484; State v. St. Clair, 17 Iowa 149; Hurrell v. State, 5 Humph. 68; Nourse v. State, 2 Tex.App. 304; Aldrich v. People, 101 Ill. 16; Com. v. Leonard, 140 Mass. 473; Com. v. Bean, 117 Mass. 141; State v. Rushing, 69 N.C. 29; Robinson v. State, 84 Ind. 452; Thomp. on Trials, sec. 2154. (3) Instruction 6 given by the court on the subject of statements made by defendant is erroneous because not supported by any testimony. However proper an instruction may be as an abstract proposition of law, it is error to give it when the facts in evidence do not justify it. State v. Elsey, 201 Mo. 561; State v. Gordon, 191 Mo. 114; Jordan v. Transit Co., 202 Mo. 418; State v. Campbell, 210 Mo. 109. The giving of instruction 6 was erroneous for the further reason that the defendant as a witness made the same statements on the stand that he made before his arrest, his defense was bottomed on the truth of these statements and the practical effect of the instruction was to discredit the testimony of the defendant as a witness in the case and advise them that the law presumed all statements favorable to defendant made by him, either in or out of court, are presumed to be untrue and was an unwarranted comment on the evidence and calculated to mislead the jury. State v. Salmon, 216 Mo. 466; State v. Shelton, 223 Mo. 118; State v. Hall, 228 Mo. 456; State v. Cannon, 232 Mo. 205. Instruction 4 is erroneous because it allows the jury to consider evidence of the receipt of other stolen goods by defendant without requiring that body to find the defendant knew they were stolen. State v. Speritus, 191 Mo. 37. (4) The court erred in admitting testimony concerning previous and subsequent transactions. Whatever the rule may be in regard to admission of similar transactions, our insistence is that the court committed error in allowing the State to go to the extremes it went in offering testimony and in attempting to offer testimony in regard to previous and subsequent offenses. The issue presented by the indictment was obscured and lost sight of by the persistent and continued effort of the State to introduce evidence of similar offenses. State v. Speritus, 191 Mo. 37; Woodward v. State, 104 S.W. 1110. If the instruction heretofore complained of as omitting to require the jury to find that defendant received the goods with unlawful or criminal intent states the law correctly, then it follows necessarily that intent is immaterial in a prosecution under this statute, and wherever intent is immaterial, evidence of similar offenses is inadmissible. People v. Hopson, 1 Denio, 574; People v. O'Brien, 96 Cal. 171; Chipman v. People, 24 Colo. 520; Albrecht v. State, 6 Wis. 74. It is only in cases where the defendant admits the possession and claims that it was an innocent possession that testimony of distinct offenses is admissible. When the defendant raises the question as to whether he intended to commit the crime by attempting to show that he committed the act innocently and for an honest and lawful purpose, such testimony may be admitted. In the case at bar the defendant denies that he committed the act at all and the state of the case made by the prosecution tenders no issue of honest or dishonest intent. State v. Burlingame, 146 Mo. 207; Regina v. McDonnell, 5 Cox's C. C. 153; Jackson v. People, 18 Ill.App. 508; People v. Lonsdale, 122 Mich. 388; Clark v. Commonwealth, 26 Ky. L. R. 1029. (5) The court erred in admitting testimony as to five hundred transactions, which were not similar to the transaction charged in the indictment, and was remote in point of time. (6) The court erred in allowing testimony of subsequent offenses to be proved in rebuttal.
John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
(1) It has been held that the "receiver of stolen property" was not the accomplice of the "thieves" because the crime of each is separate and distinct. The same reasoning would not permit, in law, an accessory to a theft, such as the defendant, Miller, to be an accomplice of one charged with receiving stolen property. In other words, the reverse proposition must be ture. 1 Wharton, Crim. Ev. (10 Ed.), sec. 440; State v. Kuhlman, 152 Mo. 103; State v. Shapiro, 216 Mo. 371; State v. Richardson, 248 Mo. 569. (2) A receiving of the goods with fraudulent intent is not necessary to the commission of the crime of "receiving stolen property." The gravamen of the offense is "guilty knowledge" and all that is necessary is that the language of the statute be followed to have the information or indictment proper in form and substance under the decisions of this court. In this respect the offense of "receiving stolen property" differs from the offense of larceny. R. S. 1909, sec. 4454; Kelley's Crim. Law & Procedure (3 Ed.), sec. 683; State v. Guild, 149 Mo. 370; State v. Speritus, 191 Mo. 37; State v. Mayer, 209 Mo. 391. "The intent" with which the goods are received is not an element of the offense and a refusal to instruct as to the same is not error. 1 Wharton, Crim. Law (10 Ed.), sec. 988; State v. Sakowski, 191 Mo. 81; State v. Rich, 245 Mo. 167; State v. Smith, 157 S.W. 323. (3) The court did not instruct the jury as to a confession of the defendant nor was there any confession in this case. The court did instruct, in instruction 6, as to the statements made by the defendant in relation to the crime charged, after the commission of the alleged offense. The record is full of statements made by the appellant Cohen which warranted the instruction being given by the court. (4) Instruction 4 as given by the court was proper. In State v. Meyers, 82 Mo. 558, Judge Philips, after an exhaustive review of both the English and American authorities, quoted from Bottomley v. U. S. in announcing the principle of evidence which justifies the exceptions to the rule which does not permit evidence of other transactions, as follows: "In all cases where the guilt of the party depends upon the intent, purpose or design with which the act is done or upon his guilty knowledge thereof, I understand it to be the rule that collateral facts may be examined into in which he bore a part for the purpose of establishing such guilty intent, design, purpose or knowledge." People v. Molineaux, 168 N.Y. 293. One of the essential ingredients of this offense with which the appellant is charged is guilty knowledge, and furthermore, the evidence tended to show a common plan or scheme embracing the various receipts of stolen property. There is no doubt of the probative value of the several different transactions of handling stolen property by the appellant in showing the guilty knowledge with which he received the property and the intention for which said property was received. State v. Wilson, 143 Mo. 346; State v. Hodges, 144 Mo. 53; State v. Phillips, 160 Mo. 506; State v. Spray, 174 Mo. 582; State v. Hyde, 234 Mo. 225. (5) The testimony as to the five hundred transactions wherein Lineman and Meyers had stolen goods and used Miller's wagon, was brought out in answer to questions propounded by the appellant's counsel to the State's witness, Miller, on cross-examination.
The indictment charged defendant with...
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