State v. Flynn

124 Mo. 480 | Mo. | 1894

. ■ Buegess, J.

At the November term, 1893, of the criminal court of the city of St. Louis, the defendant was convicted of grand larceny, and her punishment fixed at two and one half years in the penitentiary. The articles stolen were wearing apparel, the property of one Katharine Eranciscus. After unsuccessful-motions for new trial and in arrest she appealed. The bill of exceptions does not set out the testimony i'afull, but contains the following:

“The state of Missouri * * * produced testimony to the jury tending to prove the issue on her part, and one Marion Lindsay was introduced and sworn as a witness on the part of the state, and the state proposed to prove by said witness as follows, to wit: That at time of finding the articles mentioned in the indictment in the possession of defendant, there was also found in her possession other articles which had been stolen from the prosecuting witness and others about the same time as those mentioned in the indictment; to the introduction of said proof the attorney for defendant objected, because, as he alleged, said proof was immaterial and irrelevant and calculated to increase the punishment of the defendant, and the court overruled the objection and allowed said proof to be made by said witness; and to the decision of the court upon.said objection, the defendant at the time excepted. ,- Other witnesses '* * '* were permitted to testify-against the objection of the defendant.”

It is/insisted by counsel for defendant that the court committed error in admitting over his objections’ the testimony of witnesses to prove that there was found in the possession of defendant other goods which had been stolen than those mentioned in the indictment, and that such evidence was calculated to prejudice the jury and increase the punishment of defendant. This position is rather an anomalous one, under the facts as disclosed by the record.

The defendant’s guilt is admitted by her counsel. In fact he states in his brief that “the evidence against her was direct and positive,” and the only complaint is that the evidence tending to show her guilty of other larcenies must-have prejudiced the jury, and increased her-punishment, and that such evidence is only permissible when the evidence of guilt is circumstantial. Even.if this be true, how is this court to determine whether the evidence oí guilt was direct or circumstantial when it is not copied into the bill of exceptions, which does not even purport to contain all the evidence that was introduced. In any view of the. case the evidence was admissible. State v. Castor, 93 Mo. 252.

The presumption is in favor of the correctness of the action of the trial court, and, as there, is nothing before this court to be passed upon, the judgment must be affirmed.

All of this division concur.