250 Mo. 335 | Mo. | 1913
Defendant was indicted in the circuit court of Douglas county for grand larceny; being convicted and his punishment being assessed at imprisonment in the penitentiary for a term of four years, after the usual procedure in such cases provided, he has taken and now prosecutes this appeal.
The larceny specifically charged was horse stealing. Defendant was jointly charged in this behalf with four others, but upon- the defendant’s application therefor, a severance was granted to him and he was separately tried on September 26, 1912.
The horses alleged to have been stolen were the property of one Orey Bennett, who resided about four miles from the town of Yanzant in Douglas county. Some three weeks prior to the alleged theft, defendant, with one. of his co-defendants, Abe Emery, came into the neighborhood in which said Bennett resided, for the purpose of purchasing cattle, and while so engaged remained in that neighborhood about a week, boarding with one Johnathan Emery, the brother of Abe.
The cattle which' defendant and Emery purchased were kept in the lots of said Bennett. The defendant, it appears, must have become well acquainted with one
Defendant Maggard and Emery left this neighborhood with their cattle about the 22nd of June, 1910, and on the night of July 13, 1910, the two mares of Bennett, which are alleged in the indictment to have been stolen, disappeared. Search was made extensively for these mares and some two months later one of them, called in the testimony “the sorrel mare with the white face,” was found in Ozark county; and some eighteen months thereafter, to be exact, in February, 1912, the “solid sorrel mare” was found in the pasture of Dave Coram in Linn county in this State. The testimony shows that Coram purchased this mare from defendant sometime about the last of September, 1910; that about the 25th of August, preceding, defendant had come to the farm of one A. H. Stone, a .neighbor of Coram, and whom defendant had known years before, and began work for Stone as a farm hand. Defendant, during the summer of 1910, made his home with his brother, Will Maggard, who is his co-defendant here, and who resided somewhere in Greene county. On the farm of Will Maggard, the proof tends to show, in the early days of August, 1910, at a secluded place, near some empty buildings, and in a small hollow among the bushes, there were found plain indications of horses having been kept.
The theory of defendant, as is clearly disclosed by the testimony of defendant, who as a witness testified for himself, was that defendant purchased the mare which he afterwards sold to said Coram from one Ed Compton, who resided about three miles east of Springfield, and was apparently a neighbor of Will Maggard, the brother of defendant. The other of the two mares in question, namely the “white faced sorrel mare,” was for a time in the possession of said Compton, but
Defendant, in attempting to account for his possession of the stolen mare, swears, as we have stated, that he met the witness Compton on the public road and gave the latter $90 for her; that he rode her to the farm of Abe Emery, there purchased a buggy and set of harness from said Emery, and on the next morning started to drive to North Missouri. In his drive north he passed through various towns, hut does not appear to have tarried long at any of them. He says that he did not even suspect that the mare had been stolen until he returned to Springfield, which occurred about November, 1910, though he admits that he and Emery were in Bennett’s neighborhood in the June preceding, and that he saw the mares at that time, though he was unable to, remember whether he offered to trade for one of theip. or not. Upon reaching Springfield he seems to have been advised that some trouble was brewing about the mares, for he says that he saw the witness Compton and asked Compton about the matter, but was advised by Compton that the trouble was not over the mare which defendant says Compton sold him, but was about the other of Bennett’s mares. As to this conversation he is corroborated by one John Ikes, who seems to have no permanent residence at
There was much impeachment of the witness Compton by certain witnesses offered for defendant; by laying this horse stealing at his door,- and by the fact that Compton had been convicted of petit larceny, which was explained by him as consisting in the theft of a watermelon. There was testimony as to the good reputation of defendant; also testimony in rebuttal by the State of bad reputation, so as to leave the matter of reputation hanging somewhat in doubt.
Other facts, if they shall become pertinent to a full understanding of the points of contention, will be further amplified in our views thereon.
I. We have not been favored with either a brief or an oral argument on the part-of defendant. We are compelled, therefore, in performing the duty enjoined on us by the statute (Sec. 5312, R. S. 1909), to have recourse to the motion for a new trial and the motion in arrest in order to determine whether error meet for reversal occurred upon the trial.
Defendant alleges in his motion for a new trial: (a) The insufficiency of the evidence to support the verdict; (b) the misdirection and non-direction of the court in the instructions; and (c) the admission on the part of the State of incompetent testimony and the refusal to admit, on defendant’s part, competent testimony. These in their order.
The evidence was wholly circumstantial. The most damaging* circumstance was the possession of the stolen horse and the admitted sale thereof by defendant. Such possession, when recently following* larceny, is more than a circumstance, in this, that it is a circumstance coupled with a presumption against, defendant, to rebut which defendant is saddled with the duty of satisfactorily accounting therefor, to the triers of fact. [State v. Scott, 109 Mo. 226; State v. Jennings, 81 Mo. 185; State v. Good, 132 Mo. 114.]
Upon the phase of the weight of circumstantial evidence the court gave the following instruction, to-wit:
“Gentlemen of the jury, the State seeks a conviction in this case, on circumstantial evidence, and before you can convict the defendant on circumstantial evidence alone, the facts and circumstances must all form a complete chain and point directly to the defendant’s guilt and must exclude every reasonable theory of the defendant’s innocence.”
An instruction upon the quantum of circumstantial evidence should substantially advise the jury that the circumstances proved must be consistent with each other, and with the hypothesis that the defendant is guilty, and inconsistent with the theory of his innocence and with every reasonable hypothesis, except that of guilt. [State v. Dent, 170 Mo. 398; State v. Moxley, 102 Mo. 374; State v. David, 131 Mo. 380.] Taking the above definition as a fair deduction from what the courts have said and as a fairly accurate' statement of the required contents of an instruction on the quantity and quality of circumstantial evidence, and analyzing the instruction actually given, we see that the one complained of here, while inartificially drawn, yet falls within the pale of sufficiency. The court tells the jury that “before you can convict the
All of this is pertinent in the light of the fact that the most serious questions raised upon this appeal grew out of alleged errors in the admission of evidence affecting the testimony of said witness Compton.
Upon the trial the witness Compton was asked: “Q. When Bill Maggard took the mare, what did he say to you, if anything, about whether you should tell where you got the mare.” Objection to this question was urged by defendant’s counsel and this question was withdrawn without being answered. Thereupon this question was asked by the State: “ Q. I will ask you if about that time your life was threatened if you told where you got this mare?” Defendant objected unless defendant had threatened the witness. The objection was overruled and defendant saved his exceptions. This is urged upon us as error, for which it is said we should reverse the case. That is was res inter alios and inadmissible, goes without saying; but if it was an error courted by the defendant, or induced by his action, or brought about ex necessitate, the interlaced facts of the case regarded, it was not so harmful as to cause a reversal. As showing the colorless nature of this witness’s testimony in chief, we set it out in full above. The whole record shows that the witness Compton had said nothing that was not shown as well or better by other witnesses for the State. William Maggard was jointly indicted with defendant for the theft of the identical two mares, for the larceny of which defendant was herein convicted. One
Ordinarily, no legal excuse appearing, the admission of this evidence would be error; the gravity of which as to whether reversible error, depending on whether upon the facts we could say as a matter of law that its admission so prejudiced the case of defendant as to have resulted in a denial to him of a fair and impartial trial. Upon the weight of it, or touching the effect of it upon the defendant’s case, we need not pass, but will determine the point upon the. cold point of law involved as applied to the facts and conditions presented in the case.
This testimony was offered in rebuttal after defendant had closed his case. The defense had sought to impeach the testimony of the witness Compton by almost every means known to the law of evidence, though, as we have stated, the evidence which he had given for the State was colorless and comparatively worthless. The defense had proven the conviction of Compton of petit larceny; they had shown many variant statements in pais as having been made by him, and the theory of the defense which was fully developed was that Compton had himself stolen the two horses and sold them to defendant and Will Maggard. This was both the shadow and the substance; the woof and the warp .of defendant’s ease. They assailed him with “horse, foot and dragoons,” figuratively — and as it may be said upon the facts here, literally also — alone omitting in their efforts to impeach him and break him
We need not here pick and choose with care and nicety, the varying methods known to the doctrine of rehabilitation as dependent upon the manner of impeachment used or sought so to be. All attacks save one, to wit, impeachment by witnesses -for bad reputation for truth and veracity, were used.
Where a witness is impeached by proof of variant acts or statements, relevant evidence of the witness’s prior statements correspondent with his testimony, are admissible for the purpose of rehabilitation. [State v. Grant, 79 Mo. 113; State v. Hatfield, 72 Mo. 518; State v. Whelehon, 102 Mo. 17; State v. Sharp, 183 Mo. l. c. 735.]
In the case of State v. Sharp, supra, this court said:
“But, even under such circumstances, whether evidence can be introduced of former declarations of the witness to corroborate his testimony at the trial, the authorities are in much conflict. The trend of the decisions of this court, however, seems to be that such declarations are permissible.
“Thus, in the case of State v. Grant, 79 Mo. 113, it is ruled that if an attack be made upon the character of a witness-, it is then permissible to prove that the witness had made statements consistent with those made as a witness. That case was followed in the subsequent case of State v. Whelehon, 102 Mo. 17.
“In State v. Taylor, 134 Mo. 109, it is ruled that there is no doubt but that when a witness is impeached by the medium of alleged contradictory statements, evidence may be introduced in rebuttal of statements made by him of a similar character theretofore made*348 in corroboration of statements made by him on the trial. It is true that the same distinguished judge wrote both these cases, and that in the Taylor case, he said that the rule was stated too broadly in Grant’s case, by which he clearly meant that in Grant’s case the rule was held to apply to all cases in which the character of the witness is attacked upon any ground, while it only applies in/ case the witness is attacked upon the ground of having made contradictory statements, and it is sought to impeach him upon that ground.
“In Hobbs v. State, 133 Ind. 404, it is said: ‘ “If the witness has not been impeached, by proof of his having previously made statements inconsistent with his testimony, there seems to us to be no sufficient reason for the introduction of the corroborating evidence. But it is otherwise, if the witness has been thus impeached; it appears then to be proper to give the party who called the witness an opportunity to support him, by proving that the witness had, on other occasions, stated the facts to be as he represents them in his testimony. There are several cases directly in favor of the admission, under these circumstances, of this corroborating evidence. [Cooke v. Curtis, 6 Harr. & Johns. 93; Lessee of Packer v. Gonsalus, 1 Serg. & Rawle, 536; . . . Lessee of Wright v. Deklyne, 1 Peter’s Cir. Ct. 203; People v. Vane, 12 Wend. 78.] ” We may add to the citations of Mr. Justice Blackford the more recent cases of Dailey v. State ex rel., 28 Ind. 285; Brookbank v. State ex rel., 55 Ind. 169; Hodges v. Bales, 102 Ind. 494; Dodd v. More, 92 Ind. 397; Carter v. Carter, 79 Ind. 466. The appellants further contend that if corroborative statements may be proven under such circumstances, the impeached witness should not be permitted to testify to such statements. We know of no statute or rule declaring such witness incompetent, and, under the practice prevailing, the trial court or jury being the judges of the credibility*349 of the witnesses, and being enabled to weigh his testimony in the light of his impeachment, we can see no good reason for excluding him'as a witness.’
“Now the facts with respect to this question, as disclosed by the record, and as conceded by defendant, show beyond any question that the object of defendant in introducing the deposition of the witness was for the purpose of impeaching him by showing that his testimony upon the trial was inconsistent and in conflict with what he stated in the deposition with respect to the same matter, by reason of which defendant insists that he stood ‘fairly and squarely impeached.’ It thus clearly appears that the facts disclosed by the record bring this case within the exception to the general rule, and that the court did not err in admitting in evidence the testimony of Mrs. Dooley.”
"We are constrained, therefore, for the reasons given, and for others appearing in this case, not necessary here to set out, to disallow this assignment of error.
On the cognate point raised by defendant,. that it was error to permit the State in rebuttal to offer the testimony of witnesses as to the general reputation of the witness Compton, in the absence of defendant’s offering witnesses to impeach said Compton, we likewise hold that since the defense had sought to impeach this witness in every other legal way except by offering witnesses as to his general reputation for honesty and truth and veracity, evidence by witnesses called by the State in rebuttal on the general reputation of Compton, was admissible. [State v. Weisman, 238 Mo. 547; State v. Christopher, 134 Mo. App. 6.] It may well be that the novel conditions presented by this record, in this, that the testimony in chief of said Compton for the State was colorless and valueless, and the fact that all of the objectionable and damaging testimony-coming from him was elicited by defendant
We have deemed it our duty, since defendant is not represented in' this court by counsel, to thus carefully go over the record, to find if there be error in it to defendant’s prejudice. We have found none of sufficient moment to justify interference, and since in our view the conviction was right, think it ought to be affirmed, and we so order.