The State v. McGee
| Decision Date | 16 May 1905 |
| Citation | 87 S.W. 452,188 Mo. 401 |
| Parties | THE STATE v. McGEE, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Affirmed.
William E. Fish for appellant.
(1) There need be no citation of authority for the proposition that every element of a crime must be sustained by substantial proof which convinces beyond a reasonable doubt. This defendant must have had knowledge of his companion's criminal act, and must have aided therein, or have been present ready to aid therein, before guilt can be imputed to him; and there is not satisfactory evidence that this defendant had such knowledge; indeed, it seems to us to be quite clear that he could not have so known. He could not possibly have anticipated meeting Spencer getting off the car as they got on, or that he had the jewelry on his person; and the act of taking it, as described by the brakeman, who stood on the platform, was so impulsive and quick that this defendant, who was behind Taylor, with McGraw between him and Taylor, and being crowded up by the conductor behind him could hardly have anticipated, or have known, of the intention of Taylor, whose formation of criminal intent and execution thereof, was simultaneous and quick as a flash. The jury convicted this plaintiff on general principles, not because they believed him to be guilty of this particular theft, but because they believed him to be in the company of a thief, and they thought somebody should be punished. It is a case appealing particularly to this court, which should not permit a judgment to stand which was induced by such motives. An accessory after the fact, within the meaning of section 3945, Revised Statutes 1889, is not an accomplice, and cannot be charged or punished as the principal offender. Nor can he be indicted jointly with the principal for the principal's offense. State v. Umble, 115 Mo 452. To make the defendant responsible for the acts of the other party they must have a common motive and a common design. State v. Hayes, 105 Mo. 76. An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of the crime. State v. Kuhlman, 152 Mo. 100. The State ought not to ask a conviction unless it can be obtained fairly, and upon testimony that will stand the severest tests known to the law. State v. Nettles, 153 Mo. 464. (2) The evidence of St. Louis detectives, Killian and Cordell, should never have been allowed to go before the jury. The testimony of both officers is that on the 17th day of January they saw and watched these men, Taylor and McGee, in a crowded street car; that when these men left the car they, the detectives, followed and watched them, and repeated a conversation in which they claimed they were stopping in a hotel in East St. Louis. I trust that it can be readily seen by this court that this evidence was fatal to the defendant and was illegal and incompetent testimony. (3) The verdict in the second trial of this cause will not sustain a judgment. The verdict should have read, as this court stated: "We, the jury, find the defendant, John McGee, guilty of larceny from the person of Harlow B. Spencer in the nighttime, as charged in the information." State v. Rowe, 142 Mo. 442; State v. Jones, 168 Mo. 398; State v. Wehn, 10 Mo. 8; Clark's Crim. Proc., p. 485; 1 Bish. New Crim. Proc., sec. 1005; Whart. Crim. Pl. and Proc. (9 Ed.), sec. 756.
Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
(1) The facts in evidence as to the actions, conduct and statements of these men before, at the time of, and after the commission of the larceny charged, make a case, not only sufficient to go to the jury, but lead irresistibly to the conclusion that the defendant was acting in concert with Scullin throughout, and is equally guilty of the crime. "If there is substantial evidence tending to show defendant's guilt, the sufficiency of the evidence to support the verdict will not be considered by the appellate court." State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496. (2) In the prosecution of crime the State must of necessity rely in many cases upon the testimony of this class of witnesses, and it would not do to say that, because a detective's evidence showed a previous acquaintanceship with the person on trial, that would amount to placing the defendant's character in issue and, therefore, error. (3) The verdict is sufficient. The cases cited by appellant do not sustain his position. In each of the cases cited the defendant was charged with the offense of burglary and grand larceny, and the jury returned a general verdict. The court held such verdict bad, because indefinite and uncertain. There is nothing indefinite or uncertain in the verdict in this case. There is but one count in the information, and but one offense charged, and the verdict is clearly responsive to the charge in that it finds "the defendant, John McGee, guilty of larceny from the person in the nighttime, as charged in the information," etc. The law does not require in a verdict all the elements of the offense as set forth in the charge. State v. McGee and McGraw, 181 Mo. 312. The law is well settled in this State that when there is but one count in the indictment and but one offense charged, a general verdict is sufficient. The only exception to this is the statutory one in case of a conviction of a lower degree than the offense charged. Kelley's Criminal Law, pp. 262-3; State v. Berning, 91 Mo. 82; State v. Elvins, 101 Mo. 243; State v. Steptoe, 65 Mo. 640; State v. Robb, 90 Mo. 30.
This is the second appeal in this cause. The first will be found reported in State v. McGee and McGraw, 181 Mo. 312, 80 S.W. 899. The former judgment was reversed because the information was not verified as required by the statutes of this State. After the cause was reversed, the information was duly verified by Mr. Harlow B. Spencer, prosecuting witness, and the defendant was again tried and convicted. From this second conviction he prosecutes this appeal. It may be properly added that, after the reversal, there was a severance, and the defendant was separately tried.
Upon the trial the evidence for the State tended to prove the following facts:
On the night of the 21st of January, 1903, Harlow B. Spencer, the prosecuting witness in this case, accompanied a lady to Union Station in the city of St. Louis, where the lady was to take passage for Chicago, on the Chicago & Alton railroad train, due to leave St. Louis at 11:40 p. m. They arrived at the train about fifteen minutes before time for its departure. The train was standing in the train shed, and a platform or walk extended along the train for the accommodation of the passengers in getting aboard or leaving trains.
The train consisted of two sleeping cars, a chair car, and the evidence does not disclose how many other passenger cars, if any, were in the train. The last car was a standard sleeping car, the next in front was a compartment sleeping car, and the chair car was immediately in front of the compartment car. There was a vestibule connection between the chair car and the sleeping car next in the rear, and at the time in question there was but one vestibule door and steps between the sleeping car and chair car, open for passengers to get off or on, and that was the left hand door at the rear end of the chair car. Mr. Spencer boarded the train with the lady, entering the compartment sleeping car, and remaining there until the train, on schedule time, began moving away. He then hastened forward to get off. When he reached the steps at the rear end of the chair car, the train began moving at a speed of an ordinary walk. He found the passage way of the steps blocked by three men, one of whom being in the lead and about on the top step, roughly jostled against Spencer. The other two stood further down and fronted up the steps, so that for a short time, crowding against Spencer, they blocked the passage way, and Spencer was unable to get by; but finally turning sideways, they let Spencer pass and he got off the train. Within a few minutes after alighting from the train he missed his scarfpin, valued at $ 190, which he had worn sticking in his necktie. He immediately telegraphed ahead to the lady on the train about losing his scarfpin and asked that she have the compartment searched therefor.
The three men on the steps, as Spencer was leaving the train, were afterwards identified as John Scullin, who was the man farthest up the steps, Edward McGraw, and the defendant. The conductor, who was on the lower step as Spencer came out to get off, saw Scullin make a motion with his left hand over Spencer's scarf. The passenger flagman, Downing, standing on the trap door of the platform across from the steps where Spencer was trying to get off, saw Scullin put his arm against Spencer and take the pin out of Spencer's tie. Downing, within a few minutes, reported the fact to the conductor, and the latter telegraphed the occurrence to the police at Chicago.
Scullin, McGraw and the defendant entered the chair car and after talking together, took seats, one near the front, one near the middle and the other near the rear. The train was due at Chicago at 8:10 next morning. At Brighton, a station about five miles out of Chicago, the detectives boarded the train.
Halstead Station is a stopping place in the city of Chicago, about two or three miles from the Union Station. Scullin and the defendant were seen talking together between Brighton and Halstead stations in the morning. The three men went to the door of the car to get off at...
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