182 Mo. 70 | Mo. | 1904
This is a prosecution by information, duly verified by the prosecuting attorney of Jasper county, charging the defendant with having burglarized a building belonging to W. S. Crane, and with having feloniously stolen therefrom certain gold fillings, the property of W. W. Flora therein kept and deposited, of the value of forty dollars or more. The defendant was duly arraigned, tried and convicted of grand larceny, but acquitted of the burglary charge. After his motions for new trial and in arrest of judgment were heard and overruled, he appealed to this court.
The facts are these: On the eighteenth or nineteenth day of March, 1902, Dr. W. W. Flora, a dentist, in Carthage, Missouri, was preparing to go to his noonday lunch. He was accompanied by a friend. As he was about to leave the office, the defendant came in and said he desired some work done. It seems that the dentist’s time was engaged for that afternoon, and for some days thereafter, and it was accordingly arranged that the defendant should visit the office of the dentist some days thereafter. The parties then left the office of the dentist. He thinks that he locked the door of his private room and is positive that he did not lock the door of the reception room. It appears in evidence that prior to the visit of the defendant to the office of Dr. Flora, he had visited the office of Dr. Hardaway, and had also made an appointment with him. Dr. Hardaway had an attendant in the person of Miss Wrightsell, who observed the defendant at the time he visited the office. Afterwards, Dr. Hardaway desired some dental supplies and sent Miss Wrightsell to the office of Dr. Flora. She made the visit soon after twelve o ’clock and before one. On entering the office of Dr. Flora, she discovered the defendant in the reception room. Dr. Flora had not yet returned. When he did return he began to attend some patient, and at about two or three o’clock in the afternoon discovered that a considerable amount of gold,
On his part, defendant offered evidence tending to,, prove an alibi. He did not go upon the witness stand'.
The court instructed the jury to acquit the defendant of burglary, but submitted the ease to them on instructions for both grand and petit larceny. The court instructed the jury fully on the character and amount of proof necessary to convict when the evidence was circumstantial as it was in this case; the presumption of innocence; and the credibility of witnesses. It correctly defined larceny in each degree.
I. The first ground for reversal urged is that the jury acquitted defendant of burglary and yet convicted him of larceny when the evidence disclosed that he was guilty of both crimes, if either. But the evidence does not convince us that the jurors were illogical in their verdict. They properly gave the defendant the benefit of the doubt as Dr. Flora was not positive that he locked his private room in which he kept his gold fillings. He found it unlocked when he returned from lunch. If the door to this room was left open, defendant did not commit burglary by going in there and stealing the fillings, but was guilty of larceny.
H. The defendant was sufficiently identified. His identification was a question of fact and the evidence was ample sufficient to justify the verdict.
IV. There was no error in excluding the newspaper articles. While the editors of those papers might have refreshed their memories by the date of the articles in'fixing the date of the larceny the contents of the articles were in no sense evidence in the case. Moreover, those articles are not in the record and there is nothing before us to show their materiality or pertinency and they are not before us for review.
V. The alleged error in overruling the application for a continuance can not be reviewed because it is not incorporated in the bill of exceptions and no exception appears to have been taken to the refusal of the continuance. It is true the clerk has copied the application into the record proper but this unauthorized action of the clerk does not'make it a part of the record proper. The only way in which it could have become a part of the record was by incorporating it in the bill of exceptions. [State v. Palmer, 161 Mo. 156, and cases cited.]
VI. There was no error in refusing a new trial on the ground of newly-discovered evidence based on the affidavits of Kreider and Hooper. These affidavits go merely to show that defendant was in Kansas City on the nineteenth of March, 1902, and hence their only tendency was to prove an alibi and were at most only cumulative. The affidavits were insufficient to obtain a new trial on the ground of newly discovered evidence. They are wanting in many particulars required in such cases. [State v. Welsor, 117 Mo. 582.]
