133 Mo. App. 182 | Mo. Ct. App. | 1908
The defendant, a keeper of a second-hand store and junk shop, was convicted on a charge of petit larceny and prosecutes this appeal. The subject of the alleged larceny was a small quantity of molten lead, the property of the Laclede Gas Light Company. The material fact relied upon for conviction was an unexplained possession of the recently stolen property. The defense interposed is to the effect that defendant purchased the lead from a negro; that he took the name and address of the negro, and entered the same in a book kept for the purpose, in accordance with an ordinance of the city of St. Louis requiring as much from keepers of second-hand stores and junk shops. The error complained of on appeal is tliat the court excluded declarations of defendant as of the res gestae made in his interest to the police officer at the time of his arrest. The defendant himself sought to testify and his counsel also sought to elicit from the police officer who made the arrest that the defendant then stated to the officer the fact with respect to his coming into possession of the lead by purchase from the negro, whose name and address he had entered in a book. The court excluded this evidence both upon cross-examination of the police officer and upon direct examination of the defendant, as being self-serving declarations of the accused and therefore inadmissible. There is certainly no doubt of the rule of evidence to the effect that what the defendant may have said to the police officer in explanation of his possession of the alleged stolen property immediately upon his being arrested or given to understand that he was accused of the theft on the discovery of the property in his possession, would be admissible as part of the res gestae. [18 Amer. and Eng. Ency. Law (2 Ed.), 492, 493; State v. Castor, 93 Mo. 242, 251, 5 S. W. 906; State v. Ware, 62 Mo. 597, 601; 2 Bishop, New Crim. Proced. (4th Ed.), sec. 746.] It is always important, however, in the admission of such evidence to prevent the defend
“John Hollis, being duly sworn, upon his oath stated that he resided at 1411 Spruce street in the City of St. Louis, and is now and for quite a while hasi been employed as a private watchman.for the Laclede Gas Light Company, which is a corporation, doing business in the city of St. Louis; and State of Missouri; that on March 17, 1906, a lot of scrap lead was melted on the premises of said company for the purpose of cooling out; and that during the very short absence of the said Hollis from the yard where said lead was placed it was stolen and taken away by some person unknown to witness, and in ten or fifteen minutes after having seen the lead in the said yard aforesaid, the witness missed it and undertook to find it; that ten or fifteen minutes thereaf*186 ter, the witness went to the premises of the defendant, Harry Jacobs, where the said Jacobs keeps a secondhand store and junk shop, and found the lead back of some scales still hot and wrapped, or partially wrapped in a piece of cloth or sack; that witness examined the lead and recognized and identified it as the same lead which had been taken, stolen and carried away as aforesaid from the premises of the Laclede Gas Light Company, of which said company it was then and there the property, by certain indentations he made therein as the lead was cooling, and that it weighed about seventy-five (75) pounds and was of the value of three ($3) dollars or four ($4) dollars; and thereupon the witness sent for a policeman and within a few minutes, Officer Kinsey came into the junk shop and arrested Jacobs, and the. lead aforesaid was taken by the witness.”
Prom a careful perusal of this excerpt it is obvious that nothing appears therein to the effect that the defendant was informed in any manner by Hollis that he was under suspicion of having stolen the lead. It does appear affirmatively therefrom, however, that upon his arrival, the police officer arrested Jacobs and the declarations of Jacobs sought to be introduced in evidence were the declarations made then and there upon the occasion of his arrest, and so far as the record shows, immediately upon his being first taxed with the theft.
Entertaining this view, the judgment should be reversed and the cause remanded. It is so ordered.