179 Mo. 324 | Mo. | 1904
— Defendant, together with one Harry Conway, was indicted in Greene, county, upon a charge of feloniously and burglariously breaking into a freight car belonging to the St. Louis & San Francisco Railroad Company, and stealing therefrom twenty-four pairs of shoes of the value of. fifty dollars. The venue of the crime is laid in Greene county and August 3, 1902, is stated as the date of its commission. After the indictment was found and defendants were arrested, a severance was called for and granted.
It appears that soon after Conway was arrested, he entered a plea of guilty and was sentenced to the Reform School, he being at that time but seventeen years of age.
The testimony on the part of the State was substantially as follows:
On the evening of August 1, 1902, a freight car, loaded with miscellaneous merchandise from St. Louis, to be delivered at various points beyond and west of Springfield, was attached to a freight train
Sometime during the forenoon of the second day of August, the defendant broke the seal on the door and opened the car, and, together with Conway, removed therefrom four boxes of shoes. These boxes were closely guarded from public view until the following-evening.
During the day of the second of August, the defendant went to the second-hand store run by a man by the name of Smith, located at 300 East Commercial street, Springfield, and.asked W. B. Fleener, one of the employees of the store, if he could not handle some shoes. Fleener told him that he could and asked where they were. Defendant then asked the witness if he would* go with him to get them. Witness said he would and defendant then said that they had best not go until nig’ht. Defendant told witness to hire a rubber-tired buggy and meet him at Kelly’s saloon about eight o ’clock. At the proper time, .Fleener obtained a buggy and went to Kelly’s saloon and found the defendant, and drove with him to Robberson avenue, near the railroad. Fleener held the horse a few moments when the defendant and Conway approached the buggy with two boxes of shoes. They then took them to the secondhand store where they were placed in the cellar. In the meantime, the police officers were notified by Fleener, and defendant and Conway were arrested.
On the part of the defendant, evidence was introduced for the purpose of contradicting some of the police officers who were introduced by the State. There was also testimony tending to show that a detective was con
At the close of the evidence, the court instructed the jury; the cause was submitted to them and they returned a verdict of guilty as charged, assessing the punishment of defendant at five years in the penitentiary. Motions for new trial and in arrest of judgment were filed, and by the court overruled, and the defendant now presents the cause to this court for review upon his appeal.
The instructions complained of and the admission and rejection of evidence offered, will be given attention in the course of the opinion.
The errors complained of in the trial of the cause, disclosed by the brief of counsel for appellant, are:
First. That the court erroneously instructed the jury.
Second. That the court improperly refused instructions prayed for by appellant.
Third. That the court erroneously admitted the judgment of former conviction of the defendant, in the police court of Springfield.
Treating the' contentions in the order in which they are stated, it is first urged that the court erred in giving the instruction guiding the jury in the consideration of any statements made by the defendant. The form of the instruction is not assailed; hence, it will serve no purpose to burden this opinion by inserting it; appellant does, however, urge that there was no testimony upon which to base it. In other words, it is contended that the testimony fails to disclose any statements by the defendant, and the giving of the instruction operated to his prejudice. As to this contention we will say that we have read in detail the testimony in this case as disclosed by the record, and find that witness W. B. Fleener testified very fully as to a conversation he had
It is next urged that instruction No. 14, which told the jury that they were only to consider the judgment of former conviction of the defendant, for petit larceny, as affecting his credibility, was erroneous, in this, that it assumed the fact of former conviction as proven. That instruction is as follows: “You are instructed that you are to consider the evidence which has been introduced in this case, that the defendant has been convicted of the crime of petit larceny before Police Judge Burks, solely for the purpose of discrediting defendant as a witness. ” -
The objection to this instruction is without merit. The judgment of conviction was introduced, and while it was objected to on the ground that it was void for want of jurisdiction in the court to render it, there was no denial of the truth of its recital. If the judgment was properly admitted (which will be discussed later) then it is apparent that the instruction of the court was appropriate and correct.
The next assigned error to which our attention is directed is the refusal of the court to give the following instruction prayed for by the appellant: “The court
To support the contention of appellant that this instruction was erroneously refused, we are cited to the following cases: State v. Hayes, 105 Mo. 76; Saunders v. People, 38 Mich. 218; Speiden v. State, 3 Tex. App. 156; Allen v. State, 40 Ala. 334; Connor v. People, 25 L. R. A. 341.
A careful examination of those cases will clearly demonstrate that they are not applicable to this contention, and fall far short of supporting it.
In State v. Hayes, supra, the defendant Hayes was charged with burglary and larceny; a party by the name of Hill did the breaking of the warehouse, charged to have been burglarized, in the presence of the defendant; the court instructed the jury that if the defendant Hayes was present, aiding and abetting Hill in such breaking, then he was guilty of burglary. The evidence disclosed that Hill was related to the owners of the warehouse, and his sole purpose in engaging in the burglary was to enable the parties on guard to capture Hayes. The instruction was condemned for the reason that Hill, who
That is not this case; the facts are entirely different; there is no pretense that Fleener, who is denominated the detective, had anything to do with breaking open the car.
The mere fact that a person is solicited or encouraged in the commission of an offense furnishes no defense, in the event he yields to such solicitations and actually perpetrates the crime.
In Saunders v. People, supra, it was simply announced that a witness, who encouraged or schemed to bring about the commission of a crime, with the view of capturing the perpetrator of it, should be subjected to a searching cross-examination, and great latitude should be indulged in such examination for the purpose of affecting his credibility.
In Speiden v. State, supra, the proposition decided may be briefly summarized thus: “Certain bankers, apprehending an attempt by one S. to rob their bank, employed detectives, who, by authority of the bankers, decoyed him into the bank. . Held, that the consent of the detectives to the entry of S. was the consent of their employers; and, therefore, however guilty his intent and purpose, his conviction for burglary is not sustained by the evidence or warranted by the law. ’ ’
This case has no application to the facts disclosed in the record before us. There is an entire absence of any testimony indicating in the remotest way any consent on the part of the railroad to the breaking and entry of the car burglarized. To the same effect are the cases of Allen v. State, and Connor v. People, supra. None of these cases sanction the principle announced in the instruction sought to be given by the trial court. The court was clearly right in refusing the instruction.
This leads us to the only remaining question pre
The police judge had jurisdiction of the subject-matter (which was petit larceny) by virtue of the terms of the statute. He also had jurisdiction of the person of the defendant.
“ By-jurisdiction of the subject-matter is meant jurisdiction of causes of the general class to which the action belongs.” [Livingston v. Allen, 83 Mo. App. 294; Posthlewaite v. Ghiselin, 97 Mo. 424.] It may be that the information or affidavit was defective; but that was a matter that defendant could have remedied by appeal, and this court will not now stop, in this collateral proceeding, to pass upon and determine the errors complained of in a cause unappealed from before the police judge.
The judgment of conviction was regular upon its face, was admitted simply for the purpose of affecting the credibility of the defendant, who had testified in Ms own behalf, and the court by proper instruction confined the purpose of the testimony to its legitimate scope, and there was no error in its admission.