262 Mo. 181 | Mo. | 1914
Defendant was charged with stealing a pocketbook containing $61.65 from one Doctor Burke on January 7, 1914, and also with having previously been convicted of the crime of burglary in the State of West Virginia, and, having been found guilty as charged, was sentenced to serve a term of seven years in the penitentiary. After unavailing efforts' to secure a new trial and to arrest the judgment he appeals.
The evidence on the part of the State tends to prove the crime charged against defendant, and is substantially as follows:
Defendant was seen standing in front of the union depot in St. Louis, Missouri, a few minutes before
At the police station defendant was searched ond in one of his pockets was found a roll of one-dollar bills “nicely folded” and in another pocket was found two twenty-dollar bills and one five-dollar bill, not folded, but all “ crumpled. up; ” also some smaller change, including five pennies of the same color and description as those Doctor Burke had in his pocketbook.
The police officer then went back to Gratiot street, where he had arrested defendant, and, about three hundred feet from where the arrest was made, found Doctor Burke’s -empty pocketbook lying near some piles of lumber.
Defendant testified that he went out on Gratiot street to call on a lumberman for whom he had been selling lumber, but there was no lumberyard, or office in that part of the city. Defendant also stated that he recognized the ten-dollar gold piece found in his underclothes as the same coin on which he had made a small mark with an ice pick several months before he was arrested.
The defendant, further testifying in his own behalf, admitted that he had been convicted in Ohio county, West Virginia, of the crime of burglary, and that he had served a term in the penitentiary of that-State and had been discharged. He also testified that at the time he was so convicted he was under the age of eighteen years.
To save the space which would be consumed in repeating them, we will note the alleged errors assigned by défendant in connection with the conclusions we have reached.
If it is true, as asserted by defendant’s learned counsel, that a boy convicted of burglary in this State when under the age of eighteen years cannot be sent to the penitentiary, and that such conviction cannot' be treated as a former conviction as defined by section 4914, supra (a point which we need not and do not decide in this case), the defendant’s evidence that he was less than eighteen years of age when convicted in West Virginia raised an issue which could only have been dealt with by instructions. If defendant’s theory of the effect of his former conviction is correct, then it would have been proper for the trial court to have instructed the jury in substance that although they might find defendant had been convicted of the crime of burglary in the State of West Virginia, if they further found and believed that at the time of such conviction he was under the age of eighteen years, they
The trial court omitted to instruct the jury in regard to the alleged fact that defendant was under eighteen years of age when convicted in the State of West Virginia; hence if it committed any error in that regard (a point which we do not decide) it was an error of omission to instruct, and not an error in any instruction given, consequently such alleged error should have been specifically called to the attention of the trial court in defendant’s motion for new trial.
Upon a careful inspection of defendant’s motion for new trial we find therein no specific complaint of the failure of the court to instruct upon this point, so that the issue raised, or attempted to be raised, by defendant’s testimony that he was under eighteen years of age when convicted in West Virginia is not before us for review, because not mentioned in the motion for new trial. [State v. Conway, 241 Mo. 271; State v. Dockery, 243 Mo. l. c. 599; State v. Sykes, 248 Mo. l. c. 712; State v. Sydnor and Foster, 253 Mo. 375.]
An admission made by an attorney in open court during the trial of a cause against the interest of his client is presumed to be true. [Pratt v. Conway, 148 Mo. l. c. 299; Walsh v. Railroad, 102 Mo. 582.] In Pratt v. Conway, supra, Judge Gantt, in speaking for this court, said:
“Courts are warranted in acting upon the admissions of counsel in the trial of a cause. They are officers of the court, and represent their clients, and their admissions thus made bind their principals.”
Certainly no court should be convicted of error for admitting and treating a document as properly certified when the complaining party by his own admissions had led the court to believe that it was “in proper form.”
“If you find from the evidence that the money, chattels and personal property or any part thereof*192 mentioned in the information was stolen from the person of Milton C. Burke, and that recently thereafter snch property, or any part thereof, was found in the possession of the defendant, and that the circumstances connected with his possession, when first found in snch possession, were of snch a character as to demand of him an explanation of his possession, and that he failed to make snch explanation in a manner consistent with his innocence, then he is presumed to be the person who stole such property, and this presumption will be conclusive against him unless overcome or repelled by evidence, and the burden is on the defendant to adduce the evidence to overcome or repel snch presumption to your reasonable satisfaction, but not beyond a reasonable doubt, unless overcome or repelled by evidence introduced by the State.
“Such possession, to raise the presumption of guilt, must have been personal, recent, exclusive and unexplained and must have involved a conscious assertion of property by the defendant,-and if any one of these constituents is wanting, then such possession will not raise the presumption of guilt.
“If at the time the defendant was so found in the possession of such property, or any part of it, he gave an explanation which appears reasonable and probably true and consistent with his innocence, then before you can find him guilty -upon a presumption arising from such possession you must find beyond a reasonable doubt that such explanation was false.”
We do not think this instruction is subject to the criticism leveled against.it. It requires the jury to find that the property found in the possession of defendant was recently stolen from Doctor Burke before they are permitted to presume-that defendant is the party who stole the same.
If the case was a very close one, and the conviction rested upon testimony that was unsatisfactory, we might consider this point as worthy of serious consideration, for, as we said in the cases of State v. Hess, 240 Mo. 147, l. c. 160 1; State v. Horton, 247 Mo. 657; and State v. Baker, 246 Mo. l. c. 376, the misconduct of a public prosecutor will be weighed in connection with the facts of each case, and when the State’s case is weak it will require less misconduct on the part of the prosecutor to work a reversal than where, as in this case, the evidence of defendant’s guilt is very strong. [State v. Helton, 255 Mo. l. c. 183.] This assignment is overruled.
In the case of State v. Griffin, 71 Iowa, 372, there was found in the ice box of the defendant, a saloon-keeper, twenty-five dollars in gold coins of the same denomination as those stolen the day before from one of the patrons of the saloon. In that case the prosecuting witness claimed to be able to identify the coins found in defendant’s ice box by a small mark he had placed on them, and on this evidence it was held not error to submit to the jury the presumption of guilt arising from the unexplained possession of recently stolen property..
In the case at bar the minute description given by Doctor Burke of the gold coin and pennies found in defendant’s-possession, to my mind, points with more certainty to defendant’s guilt than did the alleged mark on the coins in the Griffin case, for the reason' that experience teaches us that it is quite an unusual thing for'anyone to actually mark or deface bills or coins, but both coins' and currency frequently become so discolored or worn by usage as to give them a peculiar appearance by which they can be identified with reasonable certainty.
The gold coin found in defendant’s underclothes, and which he tried to conceal, bore the same date as the one which was stolen from Doctor Burke, and the pennies found in his possession were dirty, and one of them of a dark color, the same as the five pennies which were taken from the prosecuting witness. The following additional cases tend to support the conclusions we have reached on this point: State v. Newhouse, 115 Iowa, 173; People v. Linn, 23 Cal. 150; People v. Wong
We find no reversible error in the record of this case. Defendant was represented by resourceful counsel and had a fair trial. Let the judgment be affirmed.