State v. Hughes, 71 Mo. 633

State v. Hughes

71 Mo. 633 | Mo. | 1880

Hough, J.

The defendant and one Stansberry were jointly indicted for a burglary and larceny committed either on the night of Tuesday, September 23rd, or Wednesday, September 24th, 1879. The defense was an alibi. Stansberry was acquitted and Hughes found guilty.

1. venue. The venue as laid was not directly proven, and there is no evidence in the record from which the jury was authorized to infer that the offense charged was committed in Henry county. Por this reason alone, the judgment must be reversed and the cause remanded, but as the case must be re-tried, we will briefly notice the other errors alleged.

2. impeaching testimony. Mrs. Hughes testified that her husband was at home during the whole of the night of the 23rd and of the 24th. Mrs. Stansberry, wife of the defendant Stansberry, testified that she and her husband were, during the whole of the night of Tuesday the 23rd at the house of a friend, some seven or eight miles from the place where the burglary was committed, and that during the whole of the night of Wednesday the 24th, she and her *635husband were at the house of the defendant Hughes, and that Hughes was there also. Among the articles identified by the prosecuting witnesses as having been taken, were two smoothing irons, which Mrs. Stansberry testified belonged at the house and had been used by her during the entire summer of 1879. On cross-examination Mrs. Stansberry was asked if she had not stated to one Chapman, at a certain place, in the presence of a certain party, that Plughes had stolen these things; and she denied that she had so stated. The State, in rebuttal, introduced a witness who testified that she had, at the place and in the presence of the party named, stated to Chapman that the irons in question were brought to the house after night, and 1 hat she did not know where they came from, and that she believed that Hughes stole the goods. This testimony was objected to as incompetent, and as calculated to prejudice the jury. We think this testimony was properly admitted for the purpose of impeaching the credibility of Mrs. Stansberry; and the jury were informed by the court, at the time, that it was admitted solely for that purpose. It would have been entirely proper for the court, of its own motion, and its duty if so requested, to have instructed the jury that this statement was not of itself any evidence of the guilt of Hughes, and that it could only be considered by them in determining what credit they would attach to the testimony of Mrs. Stansberry. State v. Kilgore, 70 Mo. 546.

Another witness was introduced on behalf of the State, who testified in substance that Mrs. Stansberry bad stated that she had overheard a conversation of the family to the ■effect that the defendant broke open the house, and that he, ■George Hughes, and Siegel Hughes had stolen the goods. This testimony was objected to and should have been excluded. Its admission is utterly indefensible upon any ground. It is hearsay evidence of the most pronounced character, and of the most damaging description, and even if Mrs. Stansberry had, during her examination, been in*636quired of as to this statement, as she was not, and had denied that she had made it, it would have been inadmissible for the purpose of contradicting her.

3. putting witkule?"discretion oi the court. The defendant further objects that the court erred in permitting two of the prosecuting witnesses to remain in the court room at various times during the progress of the trial after the witnesses had been put under the rule, and subsequently permitted them to testify. These witnesses were the owners of the property taken, and their presence was doubtless necessary to enable the prosecuting attorney to properly conduct the prosecution. The order excluding witnesses from the court room is a matter within the discretion of the court, and may be so molded as to meet the requirements of justice in each particular case. 1 Bishop Orim. Prac., § 1087. Vide also State v. Fitzsimmons, 30 Mo. 236. Judgment reversed and cause remanded.

All concur.