State v. Jackson

126 Mo. 521 | Mo. | 1895

Sherwood, J.

— Indictment for burglary in, and larceny from, the dwelling of Otto Martin on the sixteenth of July, 1893, in St. Charles, Missouri. The defendant went acquit of the burglary, and for the larceny his punishment was assessed at three years in the penitentiary.

The burglarious entry was effected in Martin’s dwelling house on the night of Saturday, July 15, 1893, when the theft charged was committed. Among the articles stolen was a gold watch.

On Tuesday, the eighteenth of July next thereafter, defendant went into the pawn shop of Thos. Dunn & Co., in St. Louis, and, exhibiting the watch which had been stolen from Otto Martin, handed it to Mr. Merreck and expressed a wish to get a loan on it of $10 to $20. Asked by Merreck whose watch it was, defendant said it “was all right, that he had won it at a crap game.”

Theodore Martin and Thos. Dunn were present and Merreck privately called their attention to the fact that the watch offered to be pawned was the same as that reported to have been lost by Otto Martin of St. Charles, Missouri. In the language of the record, “Mr. Dunn then walked out from behind the counter to where defendant was standing and said something to the defendant, whereupon defendant broke and ran out of the store; he ran very fast; defendant was in the store about five minutes altogether, and left the watch there and never returned to get it.”

Theodore Martin, a brother of the owner of the watch, also questioned defendant as to where he got the watch, when he said “he had won it at a game of craps; that he did not know the person he got it from; could not give his name.” On his behalf defendant established by several witu esses a clear alibi, to the effect that he was in the Two Johns saloon from 7 o’clock on Saturday night the fifteenth of July and elsewhere in the city of St. Louis on that night, and until after daylight, with those witnesses.

It was also shown by two witnesses for the defense that on the seventeenth day of July, which was the day before he exhibited the watch at Dunn’s pawn shop, defendant obtained the watch from one Abe • Lee, who let defendant have it, in order that he might pawn it and raise a sum of money and pay himself a debt owing by Lee to' him.

The usual instructions were given as to burglary and larceny, as to the recent possession of stolen property, and as to an alibi, Among the instructions asked for defendant and refused, was this:

“If the jury believe from the evidence that the defendant came into possession of the watch in question, after the property in question was taken from the house of Otto Martin on the fifteenth day of July last, then they will find the defendant not guilty.”

This instruction should have been given. There was evidence to support it. Under that evidence considered in connection with defendant’s extremely suspicious conduct when trying to pawn the watch at Dunn’s, the jury might have regarded defendant as the receiver of stolen goods, but not as the thief If they did regard defendant as the receiver, then this should have resulted in his acquittal.

The state, it seems, allowed the defense to introduce evidence, without objection, that the defendant in the month of August, 1893, voluntarily surrendered himself to a policeman. This was a singular course for the state to pursue, as evidence of self-serving acts of a party accused, is wholly inadmissible. State v. Musick, 101 Mo. 260; State v. Smith, 114 Mo. 406.

The usual point is made in the motion for a new trial that improper remarks were made by the prosecuting attorney. We go through the stereotyped formula of saying that: No such point preserved in the bill of exceptions. Statements lof matters in a motion for new trial, no evidence thereof.

For the error in refusing the instruction mentioned, judgment reversed and cause remanded.