The State v. Moore

• Decision Date: 27 June 1893
• Citation: 22 S.W. 1086,117 Mo. 395
• Parties: The State v. Moore, alias Hall, Appellant
• Court: Missouri Supreme Court

22 S.W. 1086

117 Mo. 395

The State v. Moore, alias Hall, Appellant

Supreme Court of Missouri, Second Division

June 27, 1893

Appeal from St. Louis Criminal Court. -- Hon. J. C. Normile, Judge.

Affirmed.

McDonald & Howe for appellant.

(1) The testimony of the witness, Mrs. Harmon, as to her conversation with officer Williams, to the effect that her house had been broken into, and that she thought the man had gone down the back way, was clearly erroneously admitted, as well as her statement that the window could be opened by a stick or a knife, from the outside, as she had once opened it in that way, herself. State v. Dusenberry, 20 S.W. 465; Wharton's Criminal Evidence [8 Ed.], sec. 405. (2) The testimony of officer Williams, to the effect that he found a pawn ticket upon the accused when the latter was searched at the station, was inadmissible. State v. Frederick, 85 Mo. 145; State v. Harper, 71 Mo. 425. (3) The testimony of the officer concerning the alleged admissions or confessions of the accused was wrongfully admitted. No proper foundation was laid for such evidence. State v Rush, 95 Mo. 202; State v. Duncan, 64 Mo. 262; State v. Kinder, 96 Mo. 548. (4) Instruction number 2 for the state is erroneous. By the instruction the jury are first to convict of burglary in the first degree, and then in addition they are to convict of burglary and larceny, which seems to have been considered by the trial court as a separate, distinct and somewhat aggravated offense. State v. Hutchinson, 20 S.W. 35; State v. Hecox, 83 Mo. 537; State v. Owens, 79 Mo. 620; State v Kelso, 76 Mo. 505. (5) Instructions 5 and 6 should not have been given; they are proper only where the accused fails to introduce proof of his good character or where his character is shown to be bad. State v. Kelly, 73 Mo 608; State v. Kennedy, 88 Mo. 341; State v. Shaeffer, 59 Iowa 290; Talliferro v. Com., 77 Va. 411; State v. Bruin, 34 Mo. 540; State v. Brown, 75 Mo. 319; State v. Warden, 94 Mo. 651. (6) The court should have given an instruction founded upon the testimony and theory of the accused. State v. Partlow, 90 Mo. 608; State v. Palmer, 88 Mo. 572; State v. O'Connor, 105 Mo. 126. The verdict is insufficient to support a judgment. The larceny feature of the charge against the accused under the Revised Statutes is now a graded offense of different degrees, with different punishments attached. Revised Statutes, secs. 3526, 3527.

R. F. Walker, Attorney General, and C. O. Bishop, Assistant Circuit Attorney, for the state.

(1) The first instruction given by the court fairly submitted to the jury the question of burglary in the first degree. (2) There is no conflict between the second, third and fourth instructions; there are no degrees of larceny under the statute, but there are four kinds. (3) Instructions 5 and 6 correctly declare the law in regard to the possession of property recently stolen. (4) An examination of the record will show that in not a single instance was the ground of objection stated to the admission of the evidence complained of. State v. Hope, 100 Mo. 347. (5) The verdict was sufficient under the statute. Revised Statutes, 1889, sec. 3529.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

The defendant was indicted at the July term, 1892, of the St. Louis criminal court, for burglary and larceny. He was duly arraigned and a plea of "not guilty" entered. The cause was continued at his instance to the October term, 1892, at which he was tried, and convicted of both burglary and larceny, and his punishment assessed at ten years for the burglary and five for the larceny.

The testimony offered by the state tended to show as follows: On the twentieth day of May, 1892, Mr. and Mrs. Oliver Harmon resided in the house No. 2108 Chestnut street, in the city of St. Louis; this house was at the time their dwelling house; Mr. Harmon was a traveling salesman and absent from home; Mrs. Harmon was alone in the house and was awakened from her sleep early on the morning of that day and saw a negro man in her bedroom, heard him fumbling about the wardrobe, and saw him leave the room; in a few moments after, she sprang to the front window of the room, which opened upon Chestnut street, and screamed; almost immediately Sergeant Williams, of the police force, appeared in front of the house; she told him there had been a man in the house, and she thought he had gone out the back way; Williams started at once down the street to the corner, which he turned, and ran down the cross street to the end of the block.

Mrs. Harmon then investigated, and discovered missing an overcoat, a suit of clothes and an umbrella of her husband's, which had been in the wardrobe. She also found the window of the dining-room open, which had been fastened the night before with a clasp over the lower sash. Outside, on the ground, were impressions of feet in the soft earth and a small piece of stick. The clasp could be pushed back from the outside with a knife blade or pointed stick. The window opened upon a back yard, from which a gate led into an alley, and there was a vacant lot in the rear extending to Market street, the first street south of Chestnut.

Police Officer Murphy was standing on the corner of Twenty-first and Market streets, under an awning; it was raining and he had on his rubber overcoat; he heard a rap call from his sergeant (Williams), on Twenty-first street, between Chestnut and Market, and simultaneously saw defendant coming hurriedly down the north side of Market street. Defendant crossed Market street to the south side and threw something into a doorway. The officer ran to him and encountered him; he seized defendant, who had on an overcoat; defendant "wriggled" out of the overcoat and tried to get away, but was held by the officer; in the struggle both fell on the pavement, and just then Sergeant Williams came up; defendant was overpowered and taken into custody. The overcoat was shown to be Mr. Harmon's, and the thing thrown by defendant into the doorway was a suit of clothes of Mr. Harmon's, the same articles missed from the wardrobe above mentioned.

This was about three or half-past three o'clock in the morning. On the following morning in the "holdover" Sergeant Williams had a conversation with the prisoner, when the latter admitted having been in the house of Mr. Harmon; said he had been admitted by the house girl (whom he called "Pet"), and said he took the stuff because he "wanted to play the races." The overcoat was almost new, cost $ 65, and the suit of clothes had been worn and cost $ 40 or $ 50.

Defendant, testifying in his own behalf, stated that he had loaned his race course badge to the porter of a saloon on Twenty-first and Chestnut streets and he had gone there to get it; he left the saloon and walked south on Twenty-first street to Market to take a car down town; on his way he heard the sergeant's rap; when he got to Market street he saw a bundle lying in the street; he picked it up, and just then an officer came up, to whom he handed the bundle; the officer then arrested him and the sergeant came up; there was no scuffle at all, and the officer who arrested him was not Murphy, but another, named Ahearn. He denied making the admissions testified to by Sergeant Williams; said he did not burglarize the place, and knew absolutely nothing about it.

Two witnesses (one of them a cab driver) testified that they had known defendant for some time; that his reputation was good; that is, they had never heard of his being in trouble before. The cab driver said he had met defendant at Twenty-first and Chestnut streets on the morning of the twentieth of May and paid him a dollar he owed him.

The court instructed as to burglary in the first degree, as to larceny in connection with a burglary, as to grand larceny in a dwelling house, as to petit larceny in a dwelling house, as to recent possession in burglary, and also in larceny, as to circumstantial evidence, credibility of witnesses, good character of defendant, alibi, and reasonable doubt. No instructions were asked by defendant and none refused.

The following statement appears in the bill of exceptions at the close of the state's case:

"Thereupon the defendant's counsel ore tenus requested the court to instruct the jury that they must not consider that portion of the prosecution's opening statement, which was to the effect as follows: 'At the time defendant was arrested on this charge, and searched at the station, there was found on him a pawn ticket which represented other stolen property;' which the court thereupon did orally, saying, 'the jury will not consider anything in the case which has not been testified to by some witness.' The prosecuting attorney also said: 'I have offered no evidence to sustain that statement, and to that extent my opening statement was untrue.'"

No exception was saved to the action of the court or of the prosecuting attorney.

Various assignments of error are made in this court, and they will be considered in the order of defendant's brief.

I. No error was committed in permitting Mrs. Harmon to state that she gave the alarm, and told the officer, Williams, the direction she thought the burglar had taken when he left her house. What she said in connection with the alarm she was...