The State v. Saunders

• Decision Date: 08 July 1921
• Parties: THE STATE v. T. M. SAUNDERS, Appellant
• Court: Missouri Supreme Court

232 S.W. 973

288 Mo. 640

THE STATE v. T. M. SAUNDERS, Appellant

Supreme Court of Missouri

July 8, 1921

Appeal from Livingston Circuit Court. -- Hon. Arch B. Davis, Judge.

Reversed and remanded.

L. A Martin for appellant.

(1) The court erred in forcing defendant to trial before his sentence in Iowa had expired. There is no law in any civilized county allowing the Governor to lend a person to another government to be tried for a crime and yet retaining custody of the person and requiring the other government to return the prisoner if it fails to convict him. The court should have postponed the trail until the termination of his sentence in the State of Iowa. State v. Buck, 120 Mo. 479. (2) The court sustained the objection of defendant as to his being convicted of another crime in Iowa, yet permitted the prosecuting attorney to continue to ask the same questions in different words, and overruled defendant's objection to the same. The whole range of cross-examination of defendant by the prosecuting attorney, was outside the facts testified by him in his examination in chief. The court permitted the cross-examination of defendant to cover an unreasonable range about matters and subjects not noticed or testified to in his examination in chief, all tended to create a prejudice against him. This was error. State v. McGraw, 74 Mo 573. (3) Instruction number six is a legal monstrosity. It tells the jury that the evidence of other offenses committed by defendant was admitted for the purpose of showing the intent with which the defendant acted in this case, and to throw light on the question of his guilt or innocence of the offense charged in the information herein and that it must be considered for this purpose only. State v. Young, 119 Mo. 495; State v. Primm, 98 Mo. 368.

Frank W. McAllister, Attorney-General, and J. W. Broaddus Assistant Attorney-General, for respondent.

(1) The court was possessed with jurisdiction over the person of appellant. The Governor of Iowa suspended the further execution of the sentence imposed on appellant by the District Court of Polk County, honored the requisition of the Governor of Missouri and released appellant to the authorities of this State for trial. This he had full power to do. It was no concern of appellant if the Governor of Iowa saw fit to waive the right of that State to further punish him for the offense of which he was convicted. 19 Cyc. 95; 12 Am. & Eng. Ency. Law, p. 604; People v. Hogan, 69 N.Y.S. 475; Roberts v. Reilly, 116 U.S. 96; In re Hess, 5 Kan.App. 763. (2) The instructions given by the court properly declared the law. They covered every phase of the case in a very clear manner and we cannot see how appellant could have any just cause for complaint on this score. Instruction No. 6 properly told the jury the purpose for which the evidence showing the commission of other similar offenses was admitted. State v. Gaede, 186 S.W. 1009; State v. Wilson, 223 Mo. 169; State v. Young, 266 Mo. 735. Instruction No. 7 on the question of flight for the purpose of avoiding arrest and prosecution has often met with the approval of this court. State v. Brooks, 92 Mo. 585; State v. Lewkowitz, 265 Mo. 633. Instruction 11 is the old instruction on credibility of witnesses. State v. Henderson, 186 Mo. 492; State v. Hudspeth, 159 Mo. 200. Instruction No. 13 stating the purpose of the admission of evidence tending to show that defendant had been convicted of other crimes was correct. State v. Carr, 146 Mo. 1. (3) The instructions requested by appellant were properly refused because the court had by proper instructions thoroughly presented to the jury every phase of the case, it being unnecessary to duplicate instructions. State v. Dooms, 217 S.W. 47. (4) It was proper for the State to show acts of a similar sort done by defendant in the same community at about the same time, provided the court confined the jury's consideration thereof to the issue of intent. This the court did by Instruction 6. State v. Gaede, 186 S.W. 1009; State v. Young, 266 Mo. 734; State v. Hyde, 234 Mo. 226; State v. Donaldson, 243 Mo. 475.

WALKER, J. Elder, J., concurs; James T. Blair, C. J., concurs in result; Graves, J., concurs in result in separate opinion; Higbee and Woodson, JJ., concur in separate opinion of Graves, J.; David E. Blair, J., dissents in separate opinion.

OPINION

In Banc.

WALKER J.

The appellant was charged by information in the Circuit Court of Livingston County, with larceny in the night time, in having stolen from the premises of their owners certain domestic fowls, in violation of Section 3314, Revised Statutes 1919. Upon a trial, he was convicted and his punishment assessed at five years' imprisonment in the penitentiary. From this judgment he appeals.

The appellant resided in that part of Chillicothe, known as Graysville; in the immediate neighborhood lived one Loney, an acquaintance and associate of the appellant. On the night of August 7, 1917, appellant came to Loney's residence, and when the latter's wife retired about 8:30 o'clock the men were sitting on the porch, talking. Loney testified that appellant suggested they go out and get some chickens. Loney had a horse and buggy, and at about ten or eleven o'clock p. m. they started out into the country in this conveyance. They took five or six gunny sacks along, in which to put the chickens. When they reached a neighborhood about five miles from Chillicothe, they hitched the horse in a meadow and took from the premises of farmers residing in the neighborhood about thirty chickens. Placing them in the buggy, they started homewards; they were overtaken by some farmers in an automobile. These farmers passed them slowly on the road, proceeded some distance ahead and stopped to await their coming. There was but one man in the buggy when it was driven up to where the farmers were waiting. Loney was that man. He states that after the farmers passed him and the appellant, he remarked to the latter that "there is something up, we are caught." To which the appellant replied with an oath, "I'm not caught," and jumping out of the buggy disappeared in the night. Loney was taken into custody by the farmers, who took him to Chillicothe where he was placed under arrest, charged with having stolen the chickens, tried and sentenced to the penitentiary. Nothing was heard of the appellant until in July, 1918, when it was learned that he was imprisoned in the Iowa penitentiary, under a conviction for chicken-stealing in that State. When his whereabouts were discovered, application was made to the Governor of this State for a requisition for his return, which was granted and, armed with this commission, an officer went to Des Moines and presented it to the Governor of Iowa, who made an order paroling the appellant and turning him over to the officer from Missouri, conditioned that he would be returned to Iowa to serve out his sentence if not convicted in this State of the crime charged against him.

The burden of the appellant's defense is an alibi; and that he is being prosecuted in violation of his constitutional rights in having been tried and convicted while under sentence for a crime committed in Iowa.

According to his own testimony and that of his witnesses, at about ten or eleven o'clock on the night of Loney's arrest, the appellant, who also owned a horse and buggy, went to his boarding place, and with the assistance of a woman who resided there they hitched the pony to the buggy, and he went to Braymer, a town about twenty miles away from Chillicothe; that from there he went to Iowa, and while in the latter State he was charged with and convicted of chicken-stealing and sent to the penitentiary. Appellant denies that he saw Loney on the night of the crime and as well his complicity therein.

As stated by Commissioner Railey, in his opinion in this case, in Division No. 2, there was an utter lack of compliance with our Rule 19 by counsel for appellant in his presentation of this case. Instead of a statement containing references to the pages of the transcript, with an assignment of errors and a brief of points and authorities, there is filed an argumentative narration of the facts in the case, as detailed by the witnesses for the appellant. This is followed by a discussion of the instructions, and what is termed a summary of the case. Despite these irregularities, we will endeavor to glean from the record the errors assigned, to determine if there is any merit in the appellant's contentions.

I. The parole of the Governor of Iowa, which authorized the removal of the appellant from that State to this, and his trial here, are assigned as error, in that they violate the appellant's constitutional rights in subjecting him to cruel and unusual punishment. The mistaken conclusion as to the character of appellant's injury resulting from the course pursued, is immaterial. We are still confronted with the question as to the authority for this procedure.

The Constitution of the United States (Section 2, Article 4) provides that "a person charged in any State with treason, felony or other crime, who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime." The procedure necessary to the effective enforcement of this constitutional provision is found in Section 5278, Volume 3, U.S. Comp. Statutes, as follows "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or...