The State v. Walker
| Decision Date | 06 March 1906 |
| Citation | 92 S.W. 659,194 Mo. 253 |
| Parties | THE STATE v. CHARLES WALKER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Jno. W. Wofford, Judge.
Affirmed.
Philip D. Clear for appellant.
(1) There ought to have been a verdict directed for defendant at the close of the case if only proper and legitimate evidence had been admitted. (2) The court committed reversible error in admitting, over the timely, proper and full specific objections of defendant, the evidence relating to a separate larceny of a cow on or prior to December 21, 1904, when it was sold at stock yards by a man by the name of Smith claimed by State to be defendant, and further committed reversible error in admitting, over timely and proper objection of defendant, the scale ticket evidencing the weight of the cow and the amount of money to be paid Smith on presentation to the proper party of that scale ticket, because said evidence all relates to a separate crime and transaction, from the one charged in the information. State v. Spray, 174 Mo 569; State v. Goetz, 34 Mo. 85; State v Harold, 38 Mo. 496; State v. Daubert, 42 Mo 242; State v. Reavis, 71 Mo. 419; State v. Turner, 76 Mo. 350; State v. Tabor, 95 Mo. 590; State v. Reed, 85 Mo. 194; State v. Burlingame, 146 Mo. 207.
Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
(1) The court did not err in overruling defendant's demurrer at the close of the evidence for the State. 2 Bish. New Crim. Proc., sec. 739; State v. Kelly, 74 Mo. 608; State v. Jennings, 81 Mo. 185; State v. Butterfield, 75 Mo. 297. (2) The court, in a separate instruction, declared the law on the defense of alibi in the form approved by this court. State v. Adair, 160 Mo. 391. (3) For the purpose of identification, it is permissible to prove even other crimes than the one on trial. Underhill on Crim. Ev., sec. 91; 1 Bishop's New Crim. Proc., 1129; 1 Wigmore on Ev., sec. 414, and foot note; State v. Bailey, 88 S.W. 733; Yarborough v. State, 41 Ala. 405; Peoples v. Taylor, 69 P. 292; State v. Folwell, 14 Kan. 105.
This prosecution was commenced by the prosecuting attorney of Jackson county filing an information in the criminal court of Jackson county, at the January term, 1905, wherein he charged that Charles Walker, alias E. Johnson, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 23rd day of December, 1904, one red milk cow of the goods and chattels of William A. Gosnell and James C. Gosnell, then and there being, did then and there unlawfully and feloniously steal, take and carry away, against the peace and dignity of the State.
The information was verified. The defendant was arrested and arraigned upon said charge and entered his plea of not guilty, and at the April term, 1905, of said court, was tried, convicted and his punishment assessed at four years imprisonment in the penitentiary. Motion for new trial was filed in due time, heard and overruled, exceptions saved and an appeal taken to this court.
The evidence on the part of the State tended to prove the following facts: James C. Gosnell, on the 22nd of December, 1904, resided at 35th and Agnes streets in Kansas City, Jackson county, Missouri. He had in his possession a milk cow, belonging to himself and his father, William A. Gosnell. This cow was kept in a barn yard on his premises, which yard was surrounded by a wire fence and two gates. About dark on the night of December 22, 1904, the cow was seen in the lot by James C. Gosnell and his employee, Thomas Jones. That latter fastened the gates, tying one, and the other was closed with a latch. The next morning the fence was broken and the cow gone. Not far from the lot Gosnell found a cow track corresponding to the track of his cow, and near the cow's tracks, and leading in the same direction, the tracks of a man wearing large overshoes. The tracks were leading away from Gosnell's premises. That same day the cow was found in the Kansas City Stock Yards, in the possession of the Campbell & Rosson Live Stock Commission Company. On the morning of the 21st of December, 1904, a man giving his name as J. Smith sold a cow to the said commission company, and received therefor a ticket, showing the weight, charges, price, etc., and a check for the purchase money. The same man appeared again with another cow, to-wit, the cow belonging to the Gosnells, on the morning of December 23, 1904, and sold her to the same company under the name of Johnson, and received a ticket and check as before. This last cow, sold by the man giving his name as Johnson, was fully identified as the cow stolen from Gosnell, and was returned to him by the commission company. A description of the man who sold the cow was given to Gosnell, and thereupon he gave the commission company the address of a man living about two miles from his place of residence. Lee Glascock, an employee of the commission company, and a deputy marshal, were sent to the residence of this man, and Glascock identified this man, the defendant herein, as the one who sold the company said cow, and thereupon defendant was arrested at his home by the deputy marshal, about four o'clock in the afternoon. When arrested, the defendant answered to the name of Walker. The testimony on the part of the State positively identified the defendant as the man who had sold the cow two days before under the name of Smith, and who had sold Gosnell's cow under the name of Johnson. When arrested, the defendant was searched, and a five dollar gold piece was found in one of his boots, and three silver dollars in the other. In the fob pocket of his pants was found the sale ticket of the cow sold the commission company on the 21st, under the name of Smith. This ticket was offered in evidence and the defendant was asked about it, but said he did not know anything about it. The defendant offered evidence tending to show that he was at his home all night during the night of December 22, 1904, and until seven or eight o'clock on the morning of the 23rd; he also offered evidence of good character in the neighborhood in which he resided. The State in rebuttal offered evidence tending to impeach his good character for honesty and integrity.
The cause was submitted to the jury under instructions defining larceny; on the presumption arising from the recent possession of stolen property; and on the defense of alibi and reasonable doubt. Other facts will be noted as occasion may require in the examination of the errors alleged to have been committed by the criminal court.
I. Counsel for the defendant insists that at the close of the State's case, if only proper and legitimate evidence had been admitted, the court should have directed a verdict for the defendant.
Under this head, the counsel for the defendant argues at great length the insufficiency of the evidence tending to identify the defendant as the man Johnson who sold the cow to the commission company at the stock yards on the morning of the 23rd of December. Much stress is laid upon the fact that at the preliminary trial before the justice of the peace, several of the witnesses, Glascock and McReynolds, among others, only identified the defendant as Johnson from the fact that he wore felt boots, and that Gosnell was actuated by unfriendly feelings to the defendant. But, on the other hand, the witnesses on behalf of the State made out the following case: Mr. Gosnell testified to the ownership and possession of the cow, and that she was at his home on the night of the 22nd of December, 1904, in an enclosed lot; that next morning about seven or seven thirty o'clock, his cow was missing, and he found the tracks leading towards the stock yards; that he went to the stock yards and found her there in the possession of the Campbell & Rosson Live Stock Commission Company. He testified that the tracks of the man which accompanied the cow tracks from his place appeared to have been made by large felt boots, or overshoes; that the overshoes appeared to have been of new rubber; that the impression of the rubber was plain. Indeed, the evidence left no doubt whatever that the cow found by Gosnell in the stock yards belonged to him. His evidence was fully corroborated by that of Jones, who lived with Gosnell, and closed the lot gates on the night the cow was stolen.
Mr. Hieronymus testified that he had lived in Kansas City for twenty years, and his business was that of selling hogs at the stockyards. He identified the defendant as the man who, on the 21st of December, came to the stock yards at the 12th street gate, and gave him the name of J. Smith; he had a cow to sell. Witness asked the defendant, "Who sells your cow?" and he says, "You folks." Witness then asked him his name and he said, "J. A. Smith." Thereupon the witness says, "I took his cow up to block 25, and turned her over to the cattle salesman," and said to the defendant, "I do not know how long it will be before your cow will be sold," and defendant says, "I am going out the 12th street gate, I have a horse and wagon out there." Witness testified that he was in the employment of the Campbell & Rosson Company on the 21st of December; that he had good opportunity to observe the defendant as he talked with him and walked with him; that the defendant had on a cap and felt boots with rubbers over them, had a short beard on his face at that time, and thinks he had on a duck coat. He testified that he had no doubt whatever of the defendant being the man who brought the cow to the stock yards on the 21st of December; that he made a memorandum in his book at the time.
W. H Gott testified that he was...
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