188 Mo. 427 | Mo. | 1905
The defendants appeal from a conviction of grand larceny in the circuit court of St. Louis. .The prosecution is by information. There is no irregularity in the record proper. The errors for which a reversal is sought are those which it is insisted occurred on the trial of the cause, and the insufficiency of the evidence.
The prosecuting witness was one Lunsford Sawyer. It appears from his evidence that at the date of
He took a car just after coming out of the said house.No. 2111 Market street, and returned to his room and soon after reaching it examined his pocket-book and found all of his money gone but two five-dollar
Asked if he heard any noise in the room while he occupied the bed, he said, “Not any great noise; I seen these curtains wave like the wind was blowing there and since then, 1 have kind of mistrusted there must be a person come through that door.” He made no mention of the curtains blowing to the woman; he could see the curtains as he lay on the bed. He testified that defendant Lockhart was in his presence all the time he was in the room with her; that most of the time she was on the bed with him and he did not see her touch his clothing; that he dressed himself immediately after getting out of the bed and felt his pocket-book in his pocket. His pocket-book was in a pocket that was buttoned and it was still buttoned when he put on his trousers and felt his pocket-book in there, but he recognized after going to his room that the button was loose, but he did not undertake to say that it was not in that condition when he went to defendant’s house and did not observe that condition when he dressed after getting
I. The defendants jointly and severally urge that the verdicts of the jury are without any substantial support in the' evidence.
An appellate court always enters upon an examination of this point with reluctance, inasmuch as the law provides that the jury are the judges of all questions of fact, but it has been so long, and well, settled that whether there is any substantial evidence of any material fact is a question for the court, that when the proposition is properly presented, it is our duty to consider it just as any other assignment of error. For convenience, the testimony tending to connect the defendant Lockhart with the alleged larceny will be first considered. Her guilt depends altogether upon the evidence of Sawyer. He met her on Pine street, and she solicited him to go to her room about 3:30 or 4 p. m. He was not averse to her proposition. They were strangers to each other. According to his story, they indulged in no unnecessary conversation, but went at once to her room in the house No. 2111 Market street. She opened the door and he followed her in and, with
They were on the bed together, undressed, and it is clear that, during the time they occupied the bed, it was a physical impossibility for her to have extracted the money from his pocket-book, as it was not in her reach.
When they concluded the business in hand, they arose and dressed. She did not touch his pants, and the evidence leaves not a doubt that it would have been practically impossible for her to have gone to his pants, unbuttoned the pocket, even if she had known he had money in it, and taken a portion of the money out of his pocket-book, restored the five-dollar bills, replaced the pocket-book in the pocket and rebuttoned the pocket as he says he found it when he felt for it while dressing, all without being seen or observed by Sawyer, the prosecutor.
There is not even an intimation that the latter was intoxicated or had indulged in spirituous liquors that
Sawyer was a sober man, with a large experience in Chicago and New York. His visit was in the middle of the afternoon. He saw none of the inmates of the house except defendant Lockhart and was with her only about thirty minutes. As already said, the facts detailed by him forbid the conclusion that she stole his money. After a careful review of every word of this testimony, we are driven to the. conclusion that the verdict against her is wholly unsupported by evidence, and that the circuit court should have peremptorily directed her acquittal at the close of the evidence, and accordingly as to her the judgment is .reversed with directions to discharge the defendant Lottie Lockhart.
II. As to the defendant Dale, the conviction must stand, if at all, upon the proof that she was fairly shown to be the proprietress of a house in which prostitution was practiced, and that the Lockhart woman resorted to it in plying her trade, and that when she was told that Sawyer had lost his money in her house, and had been threatened with arrest if it was not restored, she gave him $210, but at the time protested her ignorance of his- money and her innocence. It will not be seriously contended, in view of the testimony, that she was at any time in the room with Sawyer while he was in her house, or that she spoke to him or saw him, save as he passed her in the hall as he left the house after having spent a half hour with Lottie Lockhart. The evidence, then, is wholly and entirely circumstantial. Was it sufficient to convict? Were the facts detailed consistent with her guilt of the larceny? What fact, outside of the payment to Sawyer of the $210, points in the remotest degree to her guilt of the crime alleged? Was that alone sufficient to send the case to the jury as to her? Can not that fact be reasonably
The payment of the $210 upon the demand and threat of arrest was a suspicious circumstance, but standing wholly disconnected with any other criminating fact, it would be violative of the fundamental principle of criminal law, that the guilt of an accused must be established beyond a reasonable doubt, to hold that one suspicious act was sufficient to convict her of larceny. It is to be noted that the money paid Sawyer under duress was not of the same denominations as that which he asserts was stolen from him. If it be conceded that Sawyer actually had the money on his person when he went into the house, the case is full of dif
In this connection the court excluded proof that, on the evening of the alleged theft, Sawyer said, “I have been robbed, but I don’t know where; I don’t know how any one could have robbed me.” This evidence certainly tended to impeach or impair the certainty of his statement that he lost his money at 2111 Market street.
The defendant Dale was doubtless guilty of a criminal offense in keeping a bawdy house, but she was not charged with nor convicted of that.
As there was no evidence of joint action in the commission of the larceny, if any was in fact committed, it was error to give instruction 4. It was well calculated to impress the jury with the idea that the larceny was the result of a criminal conspiracy between the two women to steal Sawyer’s money, when in fact there was no testimony on which to base it. The earnestness of the prosecuting attorney in asserting that the panel game was worked, and the fact that the women were inmates of a bawdy house, coupled with the payment by defendant Dale of the' $210 to Sawyer, probably accounts for the verdict. As already said, the last circumstance was suspicious, but mere suspicion is not enough to sustain a conviction. In view of the errors noted, the judgment should be reversed as to defendant Dale and the cause remanded for a new trial in accordance with the views herein expressed, but unless other and more convincing evidence is produced by the State than appears in this record, an acquittal ought to be directed by the circuit court.