The State v. Hack
| Decision Date | 21 November 1893 |
| Citation | 23 S.W. 1089,118 Mo. 92 |
| Parties | The State v. Hack, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. Henry L. Edmunds Judge.
Affirmed.
R. F Walker, Attorney General, and C. O. Bishop for the state.
(1) The conversation between Brown and defendant's mother in regard to the watch and chain in question was properly excluded. It was an effort to introduce the admission of a third party that he had committed the offense charged, such admissions by a third party are not competent. State v Evans, 55 Mo. 460; State v. Duncan, 116 Mo. 288. (2) Mrs. Burkhardt was asked upon cross-examination whether she had not at divers places, kept girls for the purpose of prostitution; to which objection was made by appellant and objection overruled. She answered that she had not done so, and that was the end of the matter, for it was not further pressed and no attempt was made to contradict her statement. The question was competent as affecting her character as a witness -- for a witness always puts his character in issue. Assuming, however, that it was not a competent question, it is difficult to see how the result could possibly have been affected, for it is not every error that is prejudicial. The answer being a positive denial, and so remaining, there was no "admission of improper, illegal and incompetent testimony," as claimed in the motion for new trial. (3) Mrs. Burkhardt was also asked and, over objection, required to answer whether she had not offered the prosecuting witness money to leave town and not appear against her son. This question was unquestionably competent as tending to show the animus and bias of the witness, and it is well settled that answers may be compelled to any question as to the witness' corrupt or interested leanings in the case. Wharton on Criminal Evidence, sec. 476; 1 Wharton on Evidence, sec. 547; 1 Greenleaf on Evidence, 462 (last paragraph); Attorney General v. Hitchcock, 1 Ex. 93; State v. Downs, 91 Mo. 19. (4) The instructions correctly declared the law. (5) It may be conceded that the remarks of the circuit attorney set out in the record were indefensible. But at the conclusion of the argument, the court solemnly warned the jury that the remarks of the prosecutor were improper, and should be entirely disregarded by them, so that they passed to their deliberations with this judicial adjuration ringing in their ears. Yet appellant excepts to the action of the court.
-- The defendant was jointly indicted with one Patrick Brown, in the St. Louis criminal court, for the crime of burglary in the first degree and grand larceny in stealing from a dwelling house. At the regular term next thereafter a severance was ordered and the defendant put upon his trial. He was acquitted of burglary and convicted of grand larceny, his punishment being assessed at three years in the penitentiary. After unsuccessful motions for a new trial and in arrest he appealed to this court.
The testimony on the part of the state tended to show that Valentine Gardner, the prosecuting witness, resided on the ground floor of the building number 722, Clark avenue, in the city of St. Louis, his premises consisting of two rooms and a kitchen; he slept in the front room; he was acquainted with both defendants; was in their company on the evening of October 12, 1892, and until about two o'clock in the morning of October 13; they were drinking together. At the hour named, Gardner went home, and to bed, closing the door and two windows of his sleeping room; as he undressed, he put his clothes upon a chair; in his vest pocket was a gold plated watch and chain (of the aggregate value of about $ 75), also his pocketbook, containing about $ 18 or $ 20. He got up about half past six in the morning, found one of the windows up and the door open, and discovered that the watch, chain and money were gone. He met defendants during the forenoon and spoke to them about his loss, and they declared to him that they knew nothing about the missing articles. On that same morning, however, shortly after five o'clock, the defendant went into the secondhand store of one Abe Gallant with the watch in question and offered it for sale; while they were negotiating the terms, defendant Brown came in with the chain and offered it for sale; Gallant consented to pay for the two articles $ 21, and gave defendant $ 11 for the watch and Brown $ 10 for the chain. Both defendants lived upstairs over Gallant's store, with one Justine Burkhardt, the mother of defendant, who rented from Gallant and kept a boarding house. A police officer came into the store during the forenoon, and recovered the watch and chain, and afterward arrested the defendant and Brown. Both denied all knowledge of the property but appellant afterwards stated to him that he had obtained the watch from Brown, and admitted that he disposed of it to Gallant.
The testimony on the part of the defense tended to show that defendant came into his sleeping apartment, at his mother's, and went to bed between eleven and twelve o'clock that night; that he came in alone and remained there during the night, but that Brown came in about two o'clock in the morning; waked up Mrs. Burkhardt and had a talk with her, holding something in his hand, and that although defendant woke up at the time, he did not get out of bed.
Mrs. Burkhardt testified that Brown had a watch and chain in his hand at the time, and defendant undertook to show by her the conversation between her and Brown regarding the watch and chain, but on the objections of the state, the evidence was excluded.
While on the stand, under cross-examination by the state, Mrs. Burkhardt was asked by the circuit attorney, "whether or not she had at divers places kept girls for the purpose of prostitution?" Defendant objected; the objection was overruled by the court, and she answered that she had not done so. She was also asked, on cross-examination, "whether she had not, at the preliminary examination of this case, in the court of criminal correction, offered the prosecuting witness the sum of $ 300 if he would get out of town and not appear as a witness against her son (the defendant)." Over defendant's objection, the court permitted the question to be pressed, and she answered that she did not, but that on the contrary, the prosecuting witness offered to go out of town and drop it if she would give him that amount. She also stated that she slept in a room adjoining that of her son, with a man to whom she was not married, but whom she expected to marry "in July next" (the trial being in February).
Defendant testified in his own behalf and stated,...
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