State v. O'Connor, 105 Mo. 121

State v. O'Connor

105 Mo. 121 | Mo. | 1891

Thomas, J.

The defendant was charged by indictment in the criminal court of Jackson connty with robbery of the first degree, in taking a watch from William Pranke, by force and against his will. He was tried, convicted and sentenced to the penitentiary for ten years.

The parties proceeded to trial and William Franke was called as a witness by Mr. Woodson, the prosecuting attorney, and was examined at considerable length. He testified that he did not know who took his watch ; he had lost it on the night of the alleged robbery, but who got it, he did not know. The prosecuting attorney then proceeded to cross-examine him in regular style-*124He was asked what he had sworn before the grand jury, and while this examination in regard to his testimony before the grand jury was going on; the judge of the court called for the evidence taken before that body, which was handed to him.

The judge read this evidence while the prosecuting attorney continued his cross-examination of Franke ; and the part this witness took in the trial, and how his examination ended, will appear by the following excerpt from the record, viz.: “By Mr. Woodson: It is a pity they didn’t kill you instead of robbing you. I will ask you if you didn’t go into Mr. Miller’s place that night? A. I don’t know whether I was in there at all.

“Q. Don’t you know you were in there? A. No, sir.

“Q. Do you remember whether you were living or dead that day or night ?” ( Defendant’s counsel objects to the question, stating that it is a gross insult to the witness ; and, besides, as to the irregularity of the question.)

“By the court: I don’t care for you to investigate this witness any further, Major. He has either lied now or he lied before the grand jury, I don’t know which. I shall remand him to the custody of the marshal. Mr. Marshal, take care of him.” And the marshal did take care of him and took him from the courtroom before the examination in chief was concluded, and before the defendant had an opportunity to cross-examine him.

Other witnesses were examined, and at the close of the testimony the court gave, among others, this instruction over the objection of defendant: “3. The testimony delivered by the witness, William Franke, while upon the witness stand, should be wholly disregarded by you. And, further, the court instructs you that neither the direction above stated nor the action of the court in committing the said Franke to the county jail, should be considered by you as in any way bearing upon the defendant’s guilt or innocence.”

It is no use to make an argument to show that the conduct of the judge in regard to this witness and the *125giving of the above instruction is utterly indefensible, -and must have operated to the injury of defendant. It is true the record does not show that defendant excepted to the action of the court at the time Franke was put under arrest and removed from the courtroom, but it does show that an exception was saved to the giving of this instruction, and that is enough, of itself, to cause a reversal of the case. This was a very serious charge against defendant, equal, at that time, to a charge of murder of the second degree. If anyone on earth ought to have known whether the watch was taken by force and against the will of the owner, it was the owner himself. The state called the owner, and he gave some testimony, and defendant was entitled to the benefit of it, and the court had no right to withdraw it from the consideration of the jury. The court told the jury in this case that they were the sole judges of the credibility of the witnesses, and yet it assumed to decide, •and did decide, that the main witness in the case, the party alleged to have been robbed, was so utterly unworthy of belief tfiat the examination was stopped, the witness hustled off to jail, and the jury told from the “bench to disregard anything he had said. This will not do. It is serious error.

On another trial the defendant must be permitted to cross-examine all witnesses called by the state. The right of cross-examination must be maintained, or trials will become mockeries, shams, pretenses.

The court gave, over the objection of defendant, the following instruction, which was the only one given defining the offense: “1. If you shall believe and find from the evidence that at the county of Jackson, .state of Missouri, any time within three years next before the twenty-third day of February, the date of the filing of the indictment in this cause, the defendant, John O’Connor, assaulted William Franke, and by force and violence to the person of him, the said Franke, took from the person of him, the said Franke, and *126against his will, the watch named in this indictment, the same being of any value whatever, and the property of him, the said Franke, you will find him, the defendant, guilty as charged, and assess his punishment at imprisonment in the state penitentiary for such term not less than ten years as you may deem proper.”

This does not define robbery. It has all the elements of robbery, except the felonious intent, which is omitted. To constitute robbery the property must be taken from the person, by force or putting in fear, against the will of the owner, with the intent to deprive the owner of it and without any honest claim to it on the part of the taker. In other words the taking must be with intent to steal. This is elementary law. Kelley’s Crim. Law and Prac., sec. 582; Bish. C. L., sec. 1162a. This element is wholly omitted from the instruction. This was error prejudicial to defendant in this case. Though defendant had the watch, he insisted' he did not intend to steal it. The evidence shows that the parties were at a saloon in Kansas City after midnight, and no doubt both the defendant and Franke were intoxicated. Indeed, Franke says he remembers nothing about the transaction at all, and the defendant says Franke was drunk, and gave him the watch to keep. There is no evidence except that of defendant how he obtained the watch. There is evidence that Franke and defend ant were down on the ice-in the alley and Franke hallooed “watch,” “stop thief,” etc.; but there is no evidence that defendant got the watch at that time and place. That he got it then and there, is, at best, only, an inference from the facts proved. The watch was worth only $2. The defendant proved an excellent character, and it seems to us there is some merit in his defense, and he has a right to have his case fairly tried and submitted to a jury on proper instructions embodying his theory. When the state undertakes to send a man to the penitentiary for ten years for taking a nickel-plated watch, worth $2, as was done in this case, the court ought to be -careful that it *127be done in strict accordance not only with the spirit but the letter of the law.

It was proved at the trial the party that arrested defendant the night of the alleged robbery said to some parties that defendant was a “foot pad,” and after defendant was taken to the police station it was proven that Franke met him there and said' he would prosecute him. This testimony was improper. The party making the arrest did not know who it was when he called him a “foot pad,” and, if he had, the statement was not competent evidence against defendant, and the defendant was certainly not called upon to make reply when some one said to him he would prosecute him. Franke says he does not remember to have said this, but it was testified to by other witnesses who were present.

The judgment is reversed, and cause remanded for new trial.

All of this division concur.