The State v. Liston

• Citation: 292 S.W. 45,315 Mo. 1305
• Decision Date: 20 December 1926
• Docket Number: 27511
• Parties: The State v. Frank M. Liston, Appellant
• Court: United States State Supreme Court of Missouri

292 S.W. 45

315 Mo. 1305

The State v. Frank M. Liston, Appellant

No. 27511

Supreme Court of Missouri

December 20, 1926

Appeal from Howard Circuit Court; Hon. W. A. Walker, Judge.

Reversed and remanded.

Frank M. Liston for appellant.

(1) Irrelevant facts draw the minds of the jurors from the point in issue and tend to excite prejudice, and mislead. State v. Huff, 161 Mo. 459; Harper v. State, 83 Miss 402; State v. Moore, 129 N.C. 494. (2) There may be many witnesses who give testimony which agree with an accomplice, but which, if it does not serve to identify the accused, is no corroboration of the accomplice. The danger being that the accomplice will attribute a share in the transaction to an innocent person. Roscoe, Crim. Evidence 130; Ettinger v. Comm., 98 Pa. 338. (3) Trial courts should, on motion, determine whether the verdict is contrary to the evidence. State v. Young, 119 Mo. 495. And should grant a new trial when injustice has been done and a verdict is against the weight of the evidence or so clearly wrong that the verdict raises a presumption of prejudice corruption or ignorance on the part of the jury. State v. Prim, 98 Mo. 368. And should grant a new trial when a verdict is based upon impeached evidence. State v. Prendible, 165 Mo. 353; State v. Rose, 142 Mo. 418. The case at bar is only a clear one of failure of proof. R. S. 1909, sec. 2021. Where there is irrelevant evidence in a criminal case it is always presumed to be prejudicial because it would naturally lead the jury to infer that such was an important feature in establishing the guilt of the accused. State v. Stone, 106 Mo. 7; State v. Smith, 259 S.W. 508; State v. Brown, 209 Mo. 413; State v. Primm, 98 Mo. 353; State v. Tevis, 234 Mo. 276; Burkette v. Gerth, 253 S.W. 199; State v. Goodale, 210 Mo. 275; State v. Weaton, 221 S.W. 26; State v. Wilson, 91 Mo. 410.

North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

There was substantial evidence. The testimony of DeHart to the effect that the defendant invited and persuaded him to burglarize, coupled with the testimony of the several witnesses who saw the defendant and DeHart together on the day of the burglary, and the testimony of the witnesses who saw the defendant at the place where the stolen property was found, certainly would be called substantial evidence. The court, therefore, will not disturb the verdict on the ground of insufficient evidence. State v. Maurer, 255 Mo. 168.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

An information was filed in the Circuit Court of Howard County on December 22, 1925, charging the defendant with burglary and grand larceny. A trial was had on January 27, 1926, resulting in a verdict finding the defendant guilty of burglary in the second degree and assessing his punishment at imprisonment in the penitentiary for a term of eight years, and a verdict finding the defendant guilty of grand larceny as charged and assessing his punishment at imprisonment in the penitentiary for a term of four years. A motion for new trial was overruled. The court reduced the punishment for the charge of burglary from eight to five years and sentenced the defendant on the burglary charge to five years in the penitentiary and to four years in the penitentiary on the charge of grand larceny, the sentences to run concurrently. The defendant appealed.

The evidence for the State is outlined by the Attorney-General with a few changes it is as follows:

The defendant is a negro lawyer. For about a year prior to the trial he had an office in Columbia, Missouri, and also maintained a branch office in Kansas City, Missouri. The store which was broken into was known as the New York Style Shop and was owned and operated by the Famous Style Shop, a corporation. It was located next door to a hardware store in Fayette, Missouri. Back of the two stores there was a room which extended across both stores with no partition in it. According to the evidence, a window or transom was broken and then from the inside the door to the back room was unfastened.

On the morning of the 13th of November, 1925, the proprietor of the New York Style Shop found six or eight hundred dollars' worth of goods missing. These goods consisted of silk dresses and linen dresses and other goods of that kind. In the back room the proprietor of the hardware store had two sacks of coke. On the morning of the thirteenth it was found that this coke had been emptied and the sacks were missing. On the 14th of November a deputy sheriff and the city marshal found a trunk full of the stolen goods in Slater, Missouri, in the residence of one Bug Smith. The officers found in this house one Romie DeHart, Bug Smith and several others, all of whom were arrested and placed in jail. A number of other persons were in the house at the time of this arrest, but ran away and escaped. The testimony further shows that this defendant, on the 13th of November, drove into Slater in company with Romie DeHart, who got S. H. Cooper to show them the way to Bug Smith's residence, where DeHart and Bug Smith carried a trunk into the house. The testimony further shows that the defendant went into the house at the time the trunk was taken into it and stayed for a while and then left. He was not in the house when the officers found the goods. The testimony further shows that on the thirteenth the defendant was seen in Boonville in company with DeHart, and that while there DeHart secured the trunk in which the goods were found by the officers at Slater.

Romie DeHart, a negro, aged twenty-six, testified for the State: I was born in Howard County and have lived here nearly all my life. I am in jail on a charge of burglary and larceny, in connection with the charge against Liston; have pleaded guilty; am an ex-convict; have done time in Missouri Kansas, Iowa and South Dakota; first time was at Marshall; got four years for larceny; next at Winfield, Kansas; next South Dakota; next at Sioux City, Iowa. I first met the defendant at Sioux City, June 18, 1920; saw him that night and we got arrested and he got loose and I got stuck. He wrote me a letter, postmarked at Columbia, Missouri, while I was in the Iowa penitentiary, and told me he had a job for me; that was in September; I destroyed the letter. I got out of the penitentiary October 7, 1925, and came straight to Kansas City. I went to Slater, Missouri, looking for Bug Smith; have known him all my life. I went to Boonville and stayed three weeks; learned the defendant was in Kansas City. In two or three days met him at Boonville and asked what kind of a job he had; he said he would tell me later on; he said he had to go to the Boonville courts; met him at Nannie King's that night; said he had a murder job for me. He wanted me to get diamonds mostly; nothing said about Fayette at that time; next night I saw him in his room; he told me to stick around a few days; said he had to go to Kansas City. I saw him again in Boonville a week later; that was in October; said he had a job in Columbia. I went to Columbia and saw him, and the next day we returned to Boonville. I stayed there a week. He went to Kansas City and returned to Boonville. He made another trip to Columbia. We went back to Boonville. Mrs. Williams, Mr. Wright, Miss Buckner and I were in the car; had no talk about the job; stayed at Nannie King's that night. I distributed bills to them and the other people that came; he said nothing about a stick-up job then. Next day we came to Fayette; that was the first time we came together. He told me he had been at Fayette; he said they were coming to Fayette and he wanted me to come along; next day we came to Fayette; that was the 12th; got there between four and five; we had a blow-out a block from the court house; Liston, Wright and I went to get some patches. It was getting dark. Wright went across the street and got some patches. When he was fixing the car Liston showed me the place to kick in, the Famous Style Shop. He said it was the first woman's store I came to. He told me to go in the place. I went in between nine and ten. (Here witness identified the stolen goods). After I got the stuff I took it down to Liston's car that night; I did not see him that night. We made an agreement if he had money to get gasoline he would set a lantern in his car and if the lantern was not burning to hide the stuff till the next morning. There was no light and I hid it in the corn field about a quarter of a mile. Saw Liston next morning about eight o'clock at Boggs' house; had no watch. He had not got up yet when I went down there; Mrs. Williams, Miss Buckner, Miss Wright and I were in the house; we all ate breakfast there; Boggs was not there; Liston came out to the car about 9:30 or ten; this stuff was in the corn field. We left Boggs' place that afternoon at three or four o'clock; we left in the car; I told him where I would be; he came and stopped his car and I got the sacks; they were just off the roadway. He and I put them in the car. He had not got any gasoline. We went to Boonville to Nannie King's. Liston sent me a box to pack the goods in. I got an old trunk from Lige Taylor and we packed it. He gave Nannie a coat and a dress; then we tied the trunk and put it in the car. It was then about ten and we started for Slater about thirty miles off; got there about one P. M. We went from Boonville to Marshall. At Slater we went to Bug Smith's because Liston wanted to; said some parties were waiting for him there. Smith and I took the trunk into the kitchen. There were ten or fifteen sitting around there. Liston stayed two or three minutes. There were two Jews in there. Bug Smith and I put the trunk in the middle room. Liston and the Jews went in there about...