The State v. Finn

• Decision Date: 04 December 1906
• Citation: 98 S.W. 9,199 Mo. 597
• Parties: THE STATE v. THOMAS FINN, Appellant
• Court: Missouri Supreme Court

98 S.W. 9

199 Mo. 597

THE STATE v. THOMAS FINN, Appellant

Supreme Court of Missouri, Division Two

December 4, 1906

Appeal from Lawrence Circuit Court. -- Hon. F. C. Johnston, Judge.

Affirmed.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.

(1) The court did not err in overruling defendant's motion to strike out all of the evidence adduced by the State regarding a certain revolver used and introduced in evidence. The information charged defendant with the crime of robbery and with robbing William Conner of and stealing from him a certain revolver, the property of said William Conner, and the evidence moved to be stricken out was offered for the purpose of identifying and proving the value of the property described in the information and was clearly competent for that purpose. Besides, no objection was made by the defendant when the evidence was offered, and it is well settled that "a party cannot speculate upon the effect of evidence which is objectionable upon its face when offered, as this clearly was, if ever, and then complain of a refusal to reject it later in the trial." State v. Marcks, 140 Mo. 668; State v. Rapp, 142 Mo. 449; State v. Hope, 100 Mo. 347; Maxwell v. Railroad, 85 Mo. 95. (2) The court did not err in permitting the State to prove that defendant was seen in the city of Aurora the night of the robbery and before the crime was committed. 1. "The presence of the defendant at the necessary time and place must be shown as essential to the commission of a crime," and the burden is on the State. State v Woolward, 111 Mo. 256; State v. McGinnis, 158 Mo. 123; State v. Harvey, 131 Mo. 346; State v Taylor, 134 Mo. 152. 2. No objection was made to this evidence when the witness was examined in chief, nor did defendant move to strike the same out. Authorities under point 1. (3) Error was not committed in overruling defendant's objection to the evidence of the prosecuting witness as to the time when, and place where, he found the defendant Thomas Finn and his co-defendants. The objection to this evidence was that it was "incompetent and immaterial for any purpose." The officer made the arrest of these parties in the discharge of his official duty. He saw the defendant by the aid of the flashlight, and this evidence was clearly competent to prove the defendant's presence at the place of the crime. The fact that such evidence tended to prove the commission of another crime is not a valid objection. Underhill on Crim. Ev., sec. 90. (4) The court did not err in refusing a new trial on the ground of newly-discovered evidence. 1. No showing was made in the motion for a new trial or in the affidavits in support thereof that the newly-discovered evidence was so material that it would probably produce a different result if the new trial were granted. State v. Myers, 115 Mo. 398. To grant a new trial upon the ground of newly-discovered evidence, supported by the affidavits of two self-confessed criminals, so closely associated with the defendant, on trial, and under circumstances tending to discredit the truth of the statements therein, would be against the rule laid down in the adjudged cases. For it is evident that if the witnesses did testify that the defendant was not there when the crime was committed and that they knew who the others were, such evidence would not probably change the result in another trial, and therefore a new trial for that reason was properly refused. State v. Myers, 115 Mo. 394; State v. Welsor, 117 Mo. 570; State v. Miller, 144 Mo. 26; State v. Allen, 171 Mo. 562; State v. Ray, 53 Mo. 345; State v. Reynolds, 171 Mo. 552. 2. The affiants were co-defendants of the defendant, and the affidavits fail to show that the defendant sought to obtain from the affiants the facts relied upon or that affiants refused to testify thereto. Therefore, the motion and affidavits failed to show that the defendant used due diligence. Kelley's Crim. Law & Prac., sec. 424; State v. Morgan, 96 Mo.App. 343; State v. Sansone, 116 Mo. 1; Cook v. Railroad, 56 Mo. 380; Graham & Waterman on New Trial, 1021. 3. The granting of a new trial on the ground of newly-discovered evidence rests in the sound discretion of the court, and, if any doubt exists as to whether that discretion has been soundly exercised, such doubt should be resolved in favor of the ruling of the trial court. State v. Smith, 65 Mo. 313; Stephens v. Macon, 83 Mo. 345; State v. Morgan, 96 Mo.App. 343; Kelley's Crim. Law & Prac., 424.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

On the third day of January, 1905, the prosecuting attorney of Lawrence county filed an information, duly verified, wherein he charged the defendant, together with Fred Herron, Arthur Herron and Otis Herron, with robbery in the first degree in Lawrence county on the day of December, 1904.

The defendant was arrested and arraigned and entered his plea of not guilty and was granted a severance. At the March term, 1905, he was tried and convicted, and his punishment assessed at a term of nine years in the penitentiary. His motions for new trial and in arrest were duly filed and overruled and an appeal granted to this court. The defendant is not represented in this court by counsel, but we have examined the record.

The evidence discloses that in December, 1904, William Conner was employed by the city of Aurora in Lawrence county, as a night watchman. On the morning of December 14, 1904, between two and three o'clock, Conner heard a noise in a buggy-shed back of a store known as "The Mercantile," and upon investigation and by the aid of a flash light he discovered the defendant and two others hiding in the shed, and told them to come out and directed them to come with him whereupon they said they were looking for a restaurant, but he notified them that he was going to take them to jail, and he took the defendant and the two others, to-wit, Fred and Otis Herron, to the City Hall. By his direction they lighted a lamp. Conner then commanded them to drop what they had upon the floor, and one of them complied. Conner testified that by the aid of the lamp as well as the flash light, he saw the defendant's face and had no hesitancy in identifying him as one of the three prisoners that he arrested that night. Just as Otis Herron was dropping what he had on the floor, a fourth man came into the City Hall by the side of the night-watch and drew a gun on him. Conner immediately turned his attention to the new comer and knocked him down, but at this point all three of his prisoners, the two Herrons and the defendant Finn, assaulted Conner, each having a gun, and beat him into insensibility; they robbed him of his watch, his revolver and sixty cents in money, and left him on the floor unconscious, in which state he remained until five o'clock that morning. There was also evidence tending to prove that the defendant Finn and his co-defendants were seen in a saloon in Aurora between eleven and twelve o'clock that night. The defendant was a witness in his own behalf and testified that he was not in Aurora on the night of the 13th or the morning of the 14th of December, 1904, but was in Pierce City and registered at the Brunkswick Hotel about 11:30 p. m. under the name of Bert Daniels, an assumed name; that Arthur Herron, one of his co-defendants, was with him and registered at the same time under the name of Arthur Woods, and a traveling salesman registered at the same time. The hotel keeper was a witness for the defendant and testified that on the night of the 13th of December, 1904, about 11:30 o'clock p. m., a traveling salesman registered at his hotel and about the same time two others registered under the name of Bert Daniels and Arthur Woods; that the two who...