225 Mo. 609 | Mo. | 1910
This is a prosecution by information for the larceny of one gentleman’s open-face gold watch, the property of Edward Green, of the value
There was also an allegation in the information of a previous conviction of the defendant of attempted robbery in the first degree, and of a lawful compliance with the said sentence.
The testimony tended to show that the prosecuting witness, Oreen, was a fireman on the Frisco Railroad, and at times acted as engineer during the summer and fall of 1907; that on Sunday afternoon, October 20, 1907, said Oreen left his residence at number 3868. Shaw avenue and went to number 512 Spruce street, Avhere the defendant was engaged in the sale of liquor. Oreen first stopped at a restaurant, where he was joined by a man by the name of Rose, and another party who knew of defendant’s place of business. These three went to defendant’s place of business about 6:30 o ’clock that evening, they were there about twenty minutes, and during that time each took three drinks of whisky. On leaving, Oreen asked the defendant if defendant would admit him to his house again if he returned that evening, and defendant agreed to do so. Oreen returned alone to this place about 9:15 that night. He bought one drink of whisky and sat down by a table, and in the course of a few minutes the wife of the defendant came in and the following conversation took place. She asked Oreen if he ordered beer and he replied, “No, I did not order anything,” and she said, “That is all right, this is on the house,” and he said, “Very well, I will take a little whisky,” and she brought him over about half a glass of whisky and a glass of water, and he drank it, and that is the last he remembered. Oreen is positive that he had his watch when he went to this house the second time that night, and he knew nothing further after taking the second glass of whisky at the. insistence of the defendant’s wife, until he was ejected-from the building about 12 o’clock that night. On
The watch was engraved on the outside with G-reen’s initials. The evidence tended to show the watch was worth seventy-five dollars, and it was fully identified on the trial by the prosecuting witness, Green. The indictment and judgment of conviction for attempted robbery as pleaded in the information was also offered in evidence, and a certificate from
I. The defendant insists that there was no affirmative evidence to prove the larceny. Of course there can he no larceny without a taking of the property against the will of the owner, hut defendant seemingly shuts his eyes to the fact that the proof established beyond a reasonable doubt that the prosecuting witness, Green, had his watch on his person in his place of business after nine o’clock of the night on which it was stolen, and that the evidence discloses that immediately after taking the drink of whisky at the solicitation of the defendant’s wife and in the presence of the defendant, the prosecutor became unconscious, and that afterwards when he was put out of the house about midnight, he at once discovered the loss of his watch and made complaint to the officer, who in a short time went with him to the defendant’s saloon, and there the watch was discovered hidden in a room of which the defendant was the possessor, and in this connection the proof subsequently shows that when the watch was found in this room in which the defendant was sleeping, the defendant at once said to his wife, “You remember me giving a fellow a dollar on that watch last night?” thus settling the question of the defendant’s actual possession of the watch at the time the officer found it in his room. Under these circumstances the presumption arising from the recent possession of stolen property is invoked by the State. Where property has been stolen and recently thereafter it is found in the possession of another, such other-person is presumed to he the thief, and in the absence of other rebutting evidence if he fail to account for his possession of such prop
II. It is next insisted that there was no evidence to connect the defendant in this case with the defendant the record of whose conviction was offered in evidence to sustain a charge in the information of a previous conviction. The record offered in evidence was of a conviction of Edward Court in the city of St. Louis of the crime of attempted robbery in the first degree at the June term, 1899', of the circuit court of the city of St. Louis. As said by this court in State v. Moore, 61 Mo. l. c. 279: “It is true the magistrate could not state whether the Mary Cavender who was produced in court was the same person with whom the marriage of defendant took place, but this was not necessary. Identity of name is prima-facie evidence of identity of person, as this court has held on more than one occasion. In addition to that, the marriage -with Mary Cavender was not controverted, and it was proved by one witness, who had known her from girlhood, that she lived in Dade county, where the marriage of defendant took place, and was known by the name entered on the docket of the justice as having been married to defendant. ’ ’ In this case not only did the evidence show the conviction of Edward Court of attempted robbery in 1899, but that evidence goes further and establishes his conviction in the city of St. Louis, the same city in which the defendant was convicted in this case and in the same court. When these facts are taken in consideration and the further fact that the defendant offered not a word of testimony to rebut the prima-facie evidence of identity
III. There is no merit whatever in the claim that the value of the watch was not fixed by competent evidence. [State v. Maggard, 160 Mo. 469.]
IY. The verdict, while slightly irregular, was in all substantial respects sufficient and responsive to the allegation of the information.
Y. As to the complaint that the circuit attorney made prejudicial comments in his closing argument, we have carefully read that portion of the circuit attorney’s argument copied into the brief of the defendant and find nothing which transcends legitimate comment, with the exception of a reference in one place to a failure of the defendant when on the stand to testify in regard to certain statements made by the officer who was a witness against him. As to that, however, there was no ruling of the court and no exception saved to the failure of the court to rule, and of course it is not open for review under these circumstances. It will not suffice for counsel to say, “I object and except,” without any ruling upon the part of the court. When the prosecuting attorney did make a reference to the failure of the wife to testify, the court at once promptly stopped the prosecuting attorney and rebuked him and directed the jury to disregard the reference to the wife and cautioned the prosecuting attorney not to refer to her any more.
In view of the prompt action of the court and its rebuke, we are unwilling to say that this verdict should be set aside on that ground. The testimony, if believed by the jury, as it evidently was, was amply sufficient to sustain the conviction, and the judgment of the circuit court is therefore affirmed.
