the State v. Harry Levy, Alias, Etc.

• Decision Date: 24 November 1914
• Citation: 170 S.W. 1114,262 Mo. 181
• Parties: THE STATE v. HARRY LEVY, alias, Etc., Appellant
• Court: Missouri Supreme Court

170 S.W. 1114

262 Mo. 181

THE STATE v. HARRY LEVY, alias, Etc., Appellant

Supreme Court of Missouri, Second Division

November 24, 1914

Appeal from St. Louis City Circuit Court. -- Hon. William T. Jones Judge.

Affirmed.

Seebert G. Jones for appellant.

(1) The court erred in permitting the introduction of illegal testimony and evidence against the defendant. Sec. 6331, R S. 1909; Sec. 905, U. S. Law, Appendix Mo. Stat. 1909; Barton v. Steel, 65 Mo. 611; Paca v Dutton, 4 Mo. 371; Moyer v. Lyon, 38 Mo.App. 635. (2) The court erred in permitting the State to offer in the presence and hearing of the jury, illegal evidence against the defendant, and in permitting the assistant circuit attorney to detail before the jury in his opening statement an alleged attempt to bribe the prosecuting witness by a third party, not in any way connected with the defendant. State v. Horton, 247 Mo. 666; State v. Teeters, 239 Mo. 485; State v. Prendible, 165 Mo. 329; State v. Fischer, 124 Mo. 460; State v. Thomas, 99 Mo. 257; State v. Rothschilds, 68 Mo. 52; State v. Daubert, 42 Mo. 242; State v. Marshall, 36 Mo. 400; State v. Schneider, 35 Mo. 533; State v. Wolf, 15 Mo. 160; State v Mix, 15 Mo. 153. (3) The court erred in instructing the jury as to the law of the case. R. S. 1909, sec. 5231; State v. Lackland, 136 Mo. 26; Menteer v. Fruit Co., 240 Mo. 186; Cahill v. Railroad, 205 Mo. 405; State v. Weinhardt, 253 Mo. 629; State v. Heath, 221 Mo. 565; State v. Bidstrup, 237 Mo. 273; State v. Shapiro, 216 Mo. 359. (4) The court erred in submitting to the jury the former conviction of defendant because there was no evidence upon which to base it. State v. Austin, 113 Mo. 542; State v. Shapiro, 216 Mo. 359.

John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.

(1) The trial court did not commit error in submitting to the jury an instruction on the former conviction of the appellant. It is argued that at the time the appellant was convicted in West Virginia he was under the age of eighteen years, and that in view of the statutes of this State (Sec. 1529, R. S. 1909), the appellant could not have been sent to the penitentiary. If it be assumed that the appellant testified to the truth and that his age was under eighteen in 1905 when he was convicted in Virginia, still the statute of this State does not exempt one from a penitentiary sentence although he commit the crime when under eighteen years of age. Under the decisions of this State, if the defendant at the time of trial and the verdict of the jury is under the age of eighteen, the court may delay the judgment and sentence until the defendant is over the age of eighteen, at which time judgment and sentence can be entered of record and the defendant sent to the penitentiary. Sec. 1529, R. S. 1909; State v. Townley, 147 Mo. 207. If, at the time the appellant was convicted in West Virginia when he stated he was under the age of eighteen years, he had been convicted in this State of the same crime he could have been sent to the penitentiary, and, therefore, he was guilty of an offense punishable by imprisonment in the penitentiary. (2) A conviction of burglary in West Virginia and a discharge after service of the sentence was shown by competent evidence. It is not necessary to rely upon the record from West Virginia for the proof of the prior conviction of this appellant in West Virginia. The appellant's own testimony sufficiently proves that the appellant was charged with burglary in Ohio county, West Virginia, on March 13, 1905, and that he was convicted, served his sentence and discharged from the penitentiary. This proof is all that is necessary to prove the former conviction, and the former conviction as admitted and proven by the defendant's testimony in every respect coincides with the former conviction alleged in the information. It was further proven that the appellant at that time was going under the name of "Levy" and was convicted under that name. The decisions of this State and the statutes do not require that the former conviction be proven in any particular manner. Although the former conviction in this case was not perhaps proven correctly by the criminal court records of Ohio county, West Virginia, it was proven by the defendant himself. Former convictions can be proven by the testimony and admissions of the defendant. State v. Baldwin, 214 Mo. 302; State v. Court, 225 Mo. 615; State v. Carr, 146 Mo. 4. (3) Improper remarks in the opening statement do not constitute reversible error. This court has been loath to reverse judgments on account of improper remarks of attorneys in the argument when the proof is clear, for the reason that in such cases a verdict of guilty would have been returned regardless of the improper remarks. State v. Dietz, 235 Mo. 332; State v. Harvey, 214 Mo. 403; State v. Church, 199 Mo. 605; State v. Hibler, 149 Mo. 478; State v. Summar, 143 Mo. 220. Improper remarks of the State's counsel furnish no ground for reversal where the court withdrew the remarks and instructed the jury to disregard them. State v. Wright, 141 Mo. 333; State v. Howard, 118 Mo. 145. Where counsel for the State does not persist in his version of the evidence, but submitted to the court's correction, the judgment will not be reversed. State v. Kiser, 124 Mo. 651. (4) There was sufficient evidence of the appellants' possession of recently stolen property to sustain the court in giving instruction number three. Instruction number three, on the subject of a presumption raised on account of the possession of property recently stolen, was proper in form and in accordance with the decisions of this State. State v. Kelly, 73 Mo. 608; State v. Sidney, 74 Mo. 390; State v. Owens, 79 Mo. 624; State v. North, 95 Mo. 615; State v. Bryant, 134 Mo. 249; State v. Walker, 194 Mo. 253; State v. James, 194 Mo. 277; State v. Hammons, 226 Mo. 604. The evidence sufficiently proves that appellant had possession of property that was stolen from the prosecuting witness, Dr. Burke.

BROWN, J. Walker, P. J., and Faris, J., concur.

OPINION

BROWN, J.

Defendant was charged with stealing a pocketbook containing $ 61.65 from one Doctor Burke on January 7, 1914, and also with having previously been convicted of the crime of burglary in the State of West Virginia, and, having been found guilty as charged, was sentenced to serve a term of seven years in the penitentiary. After unavailing efforts to secure a new trial and to arrest the judgment he appeals.

The evidence on the part of the State tends to prove the crime charged against defendant and is substantially as follows:

Defendant was seen standing in front of the union depot in St. Louis, Missouri, a few minutes before Doctor Burke came out of said depot and attempted to board a northbound 18th street car. Burke was carrying a valise and leading a sick woman, and while on the platform of the car he felt "an unnatural disturbance" in his pants pocket. Before the car started he discovered that his pocketbook was gone and immediately got off the car. Police officer Stinger was on the same car and saw defendant hurry through the car and get off at the front end thereof. This act of defendant aroused the suspicion of the police officer and he also got off the car in time to see defendant board another car going south on 18th street. Upon being informed that Doctor Burke's pocketbook had been stolen the officer followed defendant on the next car and overtook him at 18th and Gratiot street. When first seen at Gratiot street defendant was coming towards the street car track, and when asked by the officer what he had been doing he replied that he had gone to Gratiot street to see a lumberman, but had failed to find him. He was then arrested for the alleged theft of Doctor Burke's pocketbook and brought back to the depot, where he announced that he had plenty of money, but had not taken any from Burke. Burke testified that he had in his pocketbook when the same was stolen two twenty-dollar bills, one five-dollar bill and a ten-dollar gold piece dated 1902; also some smaller change, among which were five pennies that he had carried for sometime as keepsakes; that these pennies were dirty and one of them of a dark color.

At the police station defendant was searched and in one of his pockets was found a roll of one-dollar bills "nicely folded" and in another pocket was found two twenty-dollar bills and one five-dollar bill, not folded, but all "crumpled up;" also some smaller change, including five pennies of the same color and description as those Doctor Burke had in his pocketbook.

When no gold was found in defendant's pockets he remarked that he had no ten-dollar gold piece, and that Doctor Burke had lied in charging him with taking his pocketbook and money. However, the police officer continued the search and when defendant's underclothes were removed a ten-dollar gold piece fell out of them. This gold piece bore the date of 1902.

The police officer then went back to Gratiot street, where he had arrested defendant, and, about three hundred feet from where the arrest was made, found Doctor Burke's empty pocketbook lying near some piles of lumber.

Defendant testified that he went out on Gratiot street to call on a lumberman for whom he had been selling lumber, but there was no lumberyard or office in that part of the city. Defendant also stated that he recognized the ten-dollar gold piece found in his underclothes as the same coin on which he had made a small mark with an ice pick several months before he was arrested.

The defendant, further testifying in his own behalf, admitted that he had been convicted in Ohio county, West Virginia, of the crime of burglary, and that he had served a term in the penitentiary of...