The State v. Franke
| Decision Date | 12 February 1901 |
| Citation | 60 S.W. 1053,159 Mo. 535 |
| Parties | THE STATE v. FRANKE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Criminal Court. -- Hon. B. J. Casteel, Judge.
Affirmed.
Ferrell & Zwick for appellant.
(1) The court erred in permitting the State to introduce evidence concerning a certain shotgun, supposed to have been stolen from one D. A. Turner, which was found on the premises of the defendant. The effect of the evidence was to present to the jury testimony relating to another offense and to an entirely different transaction, which prejudiced the minds of the jury against the defendant in reference to the charge for which he was on trial. State v. Young, 119 Mo. 495; Barton v. State, 18 Ohio 221; State v Kelley, 65 Vt. 531; Endaily v. State, 39 Ark 278; People v. Hartman, 62 Cal. 562; State v Riavis, 71 Mo. 419; State v. Kelley, 18 Tex.App. 262; State v. Goetz & Martin, 34 Mo. 85; Gilbraith v. State, 41 Tex. 567; People v. Tucker, 104 Cal. 440; People v. Sessions, 10 Hun. 158; State v. Daubert, 42 Mo. 242; Walker v. Com., 1 Leigh (Va.), 574; 1 Greenleaf on Evidence, sec. 53. (2) The court erred in admitting testimony of certain utterances made by the wife of the defendant on the occasion of his arrest. Such evidence was clearly hearsay and contrary to the elementary rules of evidence. 1 Greenleaf on Evidence, sec. 124; Dunn v. Altman, 50 Mo.App. 231; State v. O'Connor, 105 Mo. 121. (3) (a.) The court erred in refusing to instruct the jury as to the defense of an alibi, as asked for in the defendant's fifth instruction. The evidence on the part of the defendant tends to show that he was at another place than the scene of the crime at the time of its commission. State v. Edwards, 109 Mo. 315; State v. Crowell, 149 Mo. 391; State v. Taylor, 118 Mo. 153; State v. Sidney, 74 Mo. 390. (b.) The court erred in refusing to grant defendant's sixth instruction. State v. Woolard, 111 Mo. 248; State v. Waterman, 1 Nev. 543.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The double-barrel gun, which had dissappeared from the house of one D. A. Turner, was found in the house of the defendant. It was not connected with the crime charged in the indictment; but the fact of its being found in defendant's possession raised a presumption that he had stolen it from the house from which it had been taken until such possession was explained by him. Evidence of this theft by the defendant in the same neighborhood where the burglary was committed for which he was indicted, and near the same time, was competent and proper for the purpose of showing a system of burglaries and the means and methods used by the defendant. State v. Balch, 136 Mo. 109. (2) There was no error in the admission of evidence as to the statements made by the wife of appellant, because the witness testifying to such statements stated that they were made in loud tones, so that appellant, who was in the next room, could hear. (3) Instruction 7 fully and properly states the law on the question of alibi. The statement that the doubt "must be a substantial doubt, founded on the evidence, and not a mere possibility of the defendant's innocence" does not constitute error. State v. Good, 132 Mo. 114; State v. Davidson, 44 Mo.App. 513.
Burglary and larceny the charge, resulting in a bifurcate verdict, one branch of it finding defendant guilty of burglary in the second degree and awarding as punishment three years in the penitentiary, the other finding him guilty of larceny and assessing his punishment at two years in the same place.
The house of Mrs. Mary A. Korf, who lived about five miles south of St. Joseph, was burglariously entered on the afternoon of the sixth of November, 1899, while Mrs. Korf was temporarily absent, and a watch and some jewelry stolen from the house. Returning home shortly afterwards, Mrs. Korf discovered her loss and informed her neighbors, who started in search or chase of the thieves, and it seems that they were pursued before they had both reached their conveyance, a road wagon drawn by a sorrel horse. The one thus pursued threatened his pursuers with a gun and in this way was enabled by cutting across fields to rejoin his fellow-thief and this being done they put whip to their horse whose head was turned northward toward St. Joseph, and he went along at a rapid rate with the neighbors in pursuit, when a horseman, one of the pursuers, was fired on by one of the occupants of the vehicle, and some of the shot struck in the road only a few feet from the mounted pursuer. The firing of this shot somewhat checked the pursuit, and enabled the pursued to get such a start as enabled them to reach South St. Joseph before they were sufficiently hard pressed to compel them to leave their road wagon and seek safety in flight. On the way to that point, as well as on their outward-bound trip, defendant was seen and recognized by three or four persons and that he and the one with him had a single-barrel shotgun between them in the conveyance.
The occupants of the road wagon abandoned it, it seems, in the vicinity of the stock yards. When their conveyance was searched by the authorities, two overcoats, one a blue one, in the pockets of which were found several loaded shells and one or two empty ones, and a single-barrelled gun, loaded, were found and about two dozen loaded shells of the same calibre were found in defendant's house in a kitchen safe on the night of the arrest. When arrested and brought to the police station, defendant openly admitted that the blue overcoat was his; but being privily asked by a reporter for a newspaper who had heard the just-mentioned admission, stated the coat was not his "exactly," but that he had "worn it lots of times." Several persons, among them policemen, stated that during the two or three years next preceding the date of the burglary, they had frequently seen defendant wearing the blue overcoat. The road wagon and the sorrel horse were shown to belong to defendant's brother, and defendant and Ramsey, or "Dutch Red" his companion, and who was indicted with him, but made his escape, were seen in the road wagon, having a shotgun, and a sorrel horse hitched to the wagon, and that this was about 1 or 1:30 in the afternoon of the day the burglary was committed, and was close to Jack and Al's saloon, near where defendant's brother had a shoemaker's shop. Defendant and the other occupant of the road wagon then drove off in a southerly direction. Defendant states he only went as far as a piece of work he wanted to look at, and then got out, and let his companion go on without him. The same reporter states that at defendant's house on the evening of the sixth of November, defendant admitted to him, or in his presence, that he had been working laying bricks all day until 2 o'clock, when he went hunting. There was also testimony showing that defendant had worked for D. A. Turner who lived about a quarter of a mile from Mrs. Korf's house, and that defendant had picked apples for him four or five days beginning about the fifteenth of October or a little later next preceding the burglary; that at that time Turner had a double-barrelled shotgun, number 12 calibre, which was in the rooms his boys usually slept in in warm weather; that this gun remained there as late as the twenty-fourth or twenty-fifth of October, but disappeared from his house between the date last mentioned and the date of the burglary, and was subsequently found in defendant's house, on the eighth or ninth of November, between the laths and the rafters. One of the triggers of this gun had been repaired with a small piece of brass which made and marked its identity very conspicuous.
Henry Frans, a policeman, who assisted in making the arrest, was testifying, when the following occurred:
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