262 Mo. 689 | Mo. | 1914
Defendant was convicted of embezzlement and sentenced to two years in the penitentiary.
The evidence for the State tended to show that on the 4th of January, 1912, Mrs. Mary L. Barber delivered to him in currency $2000, which, by agreement between them, he was to place in a safe deposit box in the bant for her and return to her on demand. She was between fifty and sixty years of age and had been twice married. She was seperated from her second husband, who lived in Denver. She owned the house in which she lived at 2316 South 12th street,
The defendant was thirty years old, having a wife and one child. He had lived ten years in St. Louis and had been five years in the employ of the National Telephone Directory Company. His business was to procure contracts for advertising in the telephone directory.
Defendant and ■ Mrs. Barber became acquainted in October, 1908, when he called to get her contract for advertising. Between that time and January 4, 1912, he secured six different contracts from her, ranging in amount from $36 to $225.
The evidence for the State was that defendant visited Mrs. Barber about twice a week, often taking her on car rides, to the theatre and to dinner; all of which he denied, except that he admitted that he was at her house about twice a month, also admitted that she did not know that he was married and that he was at her house half a dozen times after January 4, 1912, prior to his leaving the city about the first of February. In November, 1911, the defendant and Mrs. Barber visited a fortune teller, who told the fortune of each out of the hearing of the other. The fortune teller testified that while the defendant’s fortune was being told he offered witness $50 if she would induce Mrs. Barber to let him have $1500; thát the witness refused and told Mrs. Barber not to let defendant have her money, saying to her, “Co home to your own daughter and grandchildren; that man is too young for you; don’t give him your money.” Defendant in his evidence admitted that he heard the
• Mr. Mackelden testified that he paid Mrs. Barber $2000 in bills on her front porch on January 4, 1912.
Defendant’s counsel at the trial conceded that she had the money. Defendant testified that she was owing him $45 and that he went to her house about January 4, 5, or 6, 1912, to get it. He then proceeded as follows, “She said she expected a party to pay her some money and he didn’t come. I waited a while and she said some one is at the door now. She came in after while and handed me the money in bills.” He stated that he saw only the $45.
Mrs. Barber testified that on January 4, 1912, she delivered to the defendant $2000 in bills, under a. promise from him as follows: “I will put it in the safety deposit vault now and nobody can touch it, or find out where it is, and then the day you need it, all you have got to do is to let me know and I will bring it to you.” Pier daughter-in-law as a witness confirmed that testimony. Mrs. Barber also testified that the $2000 was not delivered to defendant as a loan.
About the first of February, 1912, the defendant left St. 'Louis and went to Chicago, where he stayed with his family until September 15 following. He did nothing while there and had no source of income. He
Mrs. Barber was dead at the time of the trial. She testified at the preliminary examination of the defendant in the court of criminal correction. She was asked on cross-examination whether she had not expected to marry the defendant. An objection to the question was sustained, but immediately after-wards she was fully cross-examined on that subject, and stated that there was a prospect that they might marry in the future. As a part of her cross-examination a letter written by her to the defendant’s wife after his arrest was read in evidence, which contained the following: “If I had been able to come, I would have come to see you today. I am very sorry for you. If you feel half as bad as I do, you are indeed in need of sympathy. Of course, pity does no good. I have been acquainted with Mr. Baker some years but never knew he had a wife and the attentions he paid were those of a single man. We went to the theatre once or twice a week and took long car rides. He took me to dinner, I sit luncheon for him here and he spent evenings with me; New Year’s Eve he stayed until twelve o’clock, then wished me many returns of the day. I said, where will we be next New Year?- . . . I have been loaning him money for short periods. He brought it back at the agreed time, so he gained my confidence and when I received notice that my husband was going to sue me for half of my property, I just had four thousand dollars ready to pay a deed of trust off on my home. Mr. Baker urged me to get the money in cash and let him deposit it in a safety deposit and he would bring it to me the first of May when due.”
She was asked on cross-examination whether she had an agreement with defendant that he should pay her $50 for the use of the $200 which she loaned him. The examining court, without any objection being made, said, “That hasn’t anything to do with this. For the purpose of this hearing we will assume that this woman loaned him money and got good compensation.”
At the trial defendant objected to the reading in evidence of her testimony thus given, for the reason that by the above rulings the examining court had prevented defendant from fully cross-examining her. The trial court overruled the objection, and her testimony was read to the jury. During the reading of her testimony/the trial court said, “You do not claim that this was borrowed money;”' and defendant’s counsel answered, “Not the $2000 or $4000.”
On the cross-examination of Lizzie Burkett, the daughter-in-law of Mrs. Barber, defendant endeavored show that Mrs. Barber’s sanitarium was closed in 1909 by reason of a fraud order issued by the government forbidding her the use of the mails. An objection was sustained. The following then occurred:
“Mr. Scullin: Can’t I show the bad reputation of the prosecuting witness?
“The Court: Not in that way.
“By Mr. Scullin: Q. At the time did you know anything about your mother-in-law’s business with her attorneys or business affairs? A. No, sir.
“Q. You do know, do you not, that she had business regularly with her attorneys?
“A. ■ Mr. Maroney: I object to that.
*695 “Mr. Scullin: I want to show the money was expended for the payment of attorneys.
“The Court: I do not see any bearing that it has.
“Mr. Scullin: I want to show the natural drain in the ‘expenditure of money.
“The Court: I do not think it is competent.
“Defendent at the time duly excepts to the ruling of the court.”
Also the following:
Mr. Scullin: I desire to show at the time of Mrs. Barber’s death and for some time preceding the same, she had been in difficulties with the local health authorities and had employed Messrs. Zachritz &' Bass to extricate her from those difficulties; and that in addition there was by reason of this controversy with the Bell Telephone Company over the publication of advertisements in the telephone book, by reason of an order of the Postmaster-General of the United States, prohibiting to Mrs. Barber the use of the mail for herself and her enterprise. I desire to show that at the time of her death and preceding the same Mrs. Barber had received decoy letters from Federal officers and had answered them and was being investigated by the Federal' grand jury, and in answering' those letters had made offers to procure abortions and to prevent conception in cases of intercourse, and that she had employed lawyers to protect her in this trouble and that is where the money went. ’ ’
“Mr. Maroney: We object to that.
“The Court: I do not see what effect it would have even if granted; the objection will be sustained.
“Defendant at the time duly excepts to the ruling of the Court.”
Officer Robert L. Agee testified that when arrested defendant said that he didn’t remember Mrs. Barber; and that he didn’t think she ever had any money.
On cross-examination defendant testified that he may have said when arrested that he did not know
Officer Kilker, in rebuttal, testified as follows:
“Q. What was stated there? A. ‘Mr. -Baker, we have been looking for you for some time. Have you been out of town?’ He said, ‘Yes.’ I said, ‘You are under arrest.’ ‘What is the charge?* We said, ‘You are charged with embezzlement, you got some money from a lady down south.’ He said, ‘Who is it?’ We told him Mrs. Barber; Mrs. Barber has been living at 2316 South Twelfth street. He said, ‘I don’t remember the name; I don’t remember her, I got no money from anybody.’ I said, ‘We will take you to the chief’s office.’ We took him up and he was identified by Mrs. Barber, she came there.”
The defendant objected to such evidence on the ground that it was in chief and not in rebuttal. The objection was overruled.
State’s counsel in his argument to the jury said:
“Here is shown the crook going out and ingratiating himself into the favors of an old woman, resorting to every device known to the low man to gain her confidence, and then, like the man he is, violate it; and I want you men to sound a warning to this community that the cunningness of a crook won’t save him.”
Defendant’s counsel objected to the above language and asked the court to tell the jury to disregard it. The court said, “It is for the jury to determine from the evidence.”
The State’s counsel in his argument also said: “What I want to say to you is that if I did not believe from the testimony in this case that a jury ought to find him guilty I wouldn’t tell you to do it.”
Defendant objected and asked the court to reprove the State’s counsel. The court said: “He has the right to state he is -conscientiously pursuing his*697 duty. It is for the jury to determine from the evidence, not from the speeches.”
Appellant is in no position to raise that point here. The trial court, after overruling defendant’s objection to the reading of Mrs. Barber’s testimony to the jury, and while it was being read, said, “You do not claim that this was borrowed money?” To which defendant’s counsel answered, “Not the $2000 or $4000.” Mrs. Barber testified that the $2000 was not a loan. The defendant testified that he had never received it.
We are aware that it has been held, and properly so, that where the evidence tends to establish a de: fense which is inconsistent with the testimony of the
If there had been evidence in the case tending to show that the $2000 was loaned to defendant, it would have been proper to submit that theory to the jury though the defendant had testified to the contrary. The defendant is not conclusively bound by Ms own testimony. But a different question is presented here. When the trial court made the inquiry as to whether defendant claimed that the $2000 was a loan, and received the negative answer, the court was justified in acting on the theory that evidence on that point was not material, and that the refusal of the examining court to allow her to answer such questions did not render her testimony inadmissible at the trial.
Judge Sherwood said in State v. Clark, 121 Mo. l. c. 512:
“Parties litigant are not allowed to take inconsistent positions, as attempted in the present instance. They will not be permitted to cause the court and adversary counsel to pursue a certain course, and then at the outcome deny and repudiate the legal validity of that very line of conduct, and thus ‘tread back and trip up the heels of their adversary. ’ [Slack v. Lyon, 9 Pick. 62; Brown v. Bowen, 90 Mo. 184; Bigelow on Estop. (3 Ed.), pp. 562, 601, 602; McClanahan v. West, 100 Mo. 309.]”
The offer of defendant to prove that Mrs. Barber was under investigation by the Federal grand jury, and was in difficulty with the local health authorities, was incompetent for the same reason, and his further offer to show that, by reason of such facts, she had employed lawyers to represent her in those matters and that her money went to pay the expenses growing out of such matters.
In State v. Gartrell, 171 Mo. 489, this court said that calling the defendant an assassin and a snake was not reversible error, saying that counsel merely called the defendant what the evidence - for the State tended to prove him to be. That case disapproved the use of epithets, and so do we. But where, as in this case, we are satisfied that such conduct of the attorney did not influence the verdict we see no ground for reversal. We call attention to State v. Gordon, 253 Mo. l. c. 517. Neither do we approve the conduct of counsel in expressing to the jury his belief in. the defendant’s guilt. But it is our duty to closely scrutinize the evidence and to judge whether such misconduct had a prejudicial effect on the jury. It is impossible for us to see how the jury could have reached a .different conclusion. Under such circumstances, the misconduct of counsel does not amount to reversible error. There were other objections made to the language used to the jury by the prosecution, but the
Tbe judgment is affirmed.
Tbe foregoing opinion of Roy, C., is adopted as tbe opinion of tbe court.