The State v. Smith

• Court: Missouri Supreme Court
• Writing for the Court: FOX, J.
• Citation: The State v. Smith, 90 S.W. 440, 190 Mo. 706 (Mo. 1905)
• Decision Date: 21 November 1905
• Parties: THE STATE v. GRAHAM SMITH, Appellant

90 S.W. 440

190 Mo. 706

THE STATE v. GRAHAM SMITH, Appellant

Supreme Court of Missouri, Division Two

November 21, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.

Affirmed.

Willis H. Clark for appellant.

(1) The court erred in refusing to give appellant's requested instruction in the nature of a demurrer to the whole evidence. (a) The evidence tended to show that, if guilty at all, appellant was guilty of another and different offense than that with which he stood charged. R.S. 1899, secs. 1893 1900, 1901; Constitution, art. 2, secs. 22 and 30; State v. Burks, 159 Mo. 568; State v. Brannon, 55 Mo 63; State v. Pitts, 57 Mo. 85; State v. Smith, 119 Mo. 439; State v. Craft, 72 Mo. 456; State v. Ellis, 74 Mo. 385. (b) Upon the whole evidence appellant was entitled to a verdict of acquittal. State v. Nettles, 153 Mo. 464; State v. Marshall, 47 Mo. 378; State v. Mansfield, 41 Mo. 470; State v. Primm, 98 Mo. 368; State v. Prendible, 165 Mo. 329; State v. Castor, 93 Mo. 242; State v. Yaeger, 66 Mo. 173; State v. Burgdorf, 53 Mo. 65; State v. Daubert, 42 Mo. 239; State v. Huff, 161 Mo. 459; State v. Crabtree, 170 Mo. 642; State v. King, 174 Mo. 647; State v. Hahn, 87 S.W. 1006; State v. Shelley, 166 Mo. 616. (2) The punishment assessed is excessive, and so grossly excessive as to clearly indicate the existence of passion and prejudice in the minds of the jury against the appellant. State v. Prendible, 165 Mo. 353; State v. Hahn, 87 S.W. 1006; State v. Burgdorf, 53 Mo. 65. (3) The court committed error in the instructions given to the jury. State v. Waller, 174 Mo. 518; State v. Spray, 174 Mo. 569; State v. Lantz, 184 Mo. 223; State v. Graves, 185 Mo. 713. (4) The verdict is insufficient in form and substance. State v. McGee, 181 Mo. 312; State v. Cronin, 88 S.W. 604; State v. Miller, 88 S.W. 607.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) By reason of the failure to file an affidavit for appeal, it is insisted that there is nothing before this court, and that this cause should be stricken from the docket. State v. Roscoe, 93 Mo. 146; State v. Miller, 189 Mo. 673; Clelland & Co. v. Shaw, 51 Mo. 440. (2) The State's instructions were correct, and fully and fairly covered the case. All the instructions have been approved by this court. State v. Valle, 164 Mo. 550; State v. McGee, 181 Mo. 312; State v. Moore, 101 Mo. 326; State v. McGinnis, 158 Mo. 123; State v. Smith, 164 Mo. 584; State v. Adair, 160 Mo. 395. (3) The evidence was sufficient to sustain the verdict; in fact, it is impossible to see how the jury could have done otherwise, if they believed witness Wagner. Whether his testimony should have been believed or disbelieved, was a question for the jury. State v. DeWitt, 152 Mo. 76; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8; State v. Williams, 186 Mo. 128; State v. Harvey, 147 Mo. 69.

OPINION

FOX, J.

This is an appeal by defendant from a conviction in the circuit court of the city of St. Louis of larceny from the person in the nighttime. The judgment in this cause is predicated upon an information filed by the assistant circuit attorney, charging defendant and one William McHugh with larceny of four dollars from the person of one George Wagner in the nighttime. The offense was alleged to have been committed on November 23, 1903, and the information was duly accompanied by the affidavit of George Wagner. On January 20, 1904, a severance was granted and McHugh was first tried, and convicted. On the next day, January 21, 1904, the defendant was put upon trial and convicted.

The testimony on the part of the State may be briefly stated as follows:

This offense is charged to have been committed in the nighttime, about November 23, 1903. George Wagner, the prosecuting witness, upon whose testimony the State must chiefly rely for the support of this conviction, testified that on the night above mentioned, he had in his pants pockets between four and five dollars in silver. He details his whereabouts in the city of St. Louis, commencing at about five o'clock in the afternoon, and admits that he had been drinking a little, and that about 12 or 1 o'clock in the night he visited a house of ill fame at 2024 Chestnut street. This witness states that he knew both McHugh and this defendant by sight and had known them for sometime prior to the time he claims to have lost his money. The prosecuting witness, so he says, left the house of ill fame at 2024 Chestnut street about 3:30 o'clock in the morning; that after stepping out on the sidewalk he was starting to urinate and McHugh and this defendant crossed the street and he relates the occurrence of the taking of his money about as follows: "They played detectives on me and McHugh says, 'What are you doing around here this time of the morning?' and said to the defendant, 'Just go ahead and see what he has got on him, arrest him,'" and he then states that the defendant held him and McHugh put his hand in his pocket and took the money away from him. As soon as he put his hand in his pocket, the witness says that he called for the police named Mac., and as soon as he called for him they ran down Chestnut street and turned the corner and he ran after them. On the corner of Chestnut and Twentieth street Wagner met the police officer returning with McHugh, whom he had arrested. The following inquiry was made of the prosecuting witness: "Q. Now, then, while McHugh put his hand in your pocket what did the defendant do or what did he say, if he said anything? A. Nothing at all. As soon as I called for the police they run." The prosecuting witness admitted upon cross-examination that he told Sergeant Connors who had arrested McHugh that the man who was with McHugh was a short, stout man, with smooth face. Wagner, the prosecuting witness, further testified that he met the defendant a couple of days after the night of the occurrence in which his money was lost; that this meeting was in a saloon on Twenty-first and Chestnut street; he says that he had no special conversation with the defendant, but that the defendant came into the saloon and said to him, "You know me, don't you, you son-of-a-bitch; I'll fix you." Upon this remark being made Wagner says that he took his drink and went out.

The State introduced the police officer, John J. Connors. His testimony was substantially as follows: I am sergeant of police for the precinct including the district known as Twentieth and Pine and Twentieth and Chestnut. Have known defendant about a year and a half, and McHugh about as long. Have known Wagner since the arrest of McHugh. I saw Wagner and McHugh that night, about 3:30 in the morning. I and Officer Cuddihee were standing on Twentieth and Pine street, on the northwest corner. We noticed two men come running from the south -- from Chestnut street. They turned in the alley running west toward Twenty-first street between Pine and Chestnut. I sent the officer to follow them up in the alley and went around to head them off on Twenty-first street. Just as I passed a little private alley one of the men was coming north through this little private alley and I immediately turned and started for him and he turned and ran back again south in the other alley. I hollered to him to halt and just then the officer says, "Throw up your hands," and he run right into the officer's arms. That man was McHugh. We seen another man, he got away, we could not see where he went to. We brought McHugh east through the main alley to Twentieth street and then started south with him towards Chestnut and we just got midway between the alley and Chestnut street when Mr. Wagner came up. We took McHugh to the box and locked him up after we got Wagner's statement. We searched McHugh at the box, I taking four dollars out of his pocket and there was some -- the officer searched him at the station. I don't know exactly what he got. This four dollars was four silver dollars and two halves -- two silver half dollars -- three silver dollars and two silver half dollars. I did not arrest the defendant. Upon cross-examination he testified: I did not, to my knowledge, see this defendant that night. I have known Smith about a year and a half. He has always worn a mustache during that time, every time I seen him. He was not smooth-faced at any time. He is not a short, stout man. Wagner described the man that was with McHugh as a short, stout man wearing a mustache, having a mustache, with a black soft hat. I recall he said he was a short, stout, smooth-faced man, smooth face, that's the way he put it. If I rightly recollect I think I asked him if he had any beard and he told me no, he was smooth-faced. The weather was very slippery and sleety that night, because I fell in the chase. I believe it was the first snow of the season.

Another police officer, Thomas F. Cuddihee, was introduced by the State; he simply testified as to the arrest of McHugh and the search of him after the arrest, and finding four dollars and ninety-five cents on him, consisting of three silver dollars and two half dollars and ninety-five cents in change.

Frank Ahern was introduced by the State and testified substantially as follows: I am a special officer have no beat, no assignment except as the chief of detectives gives it to me. I have known this defendant about five years and McHugh about two years. I arrested defendant at Twenty-second and Market in the barber shop. Saw him before that on that day about 10 o'clock in the morning. When I arrested him he asked me what I was arresting him for, and I made the remark, "Don't you know?" and he says, "No; in connection with the McHugh case?" I says, "Yes." He made the remark he wasn't right for it. He said ...