75 Mo. App. 197 | Mo. Ct. App. | 1898
The defendant was charged with stealing some furniture and wall paper and was convicted of petit larceny in the Gentry circuit- court. He contends that the circuit court erred in permitting him to be asked in cross-examination while a witness in his own behalf questions, which were preceded by the statement of the witness that he had “been preaching in this state about twenty-nine years. Before that I was in Iowa in the Des Moines conference. I came from Iowa here. I preached in Iowa four or five years. I lived in Johnson county, Iowa.” The following are the questions referred to:
“Q. How often have you plead guilty to larceny in the state of Iowa? A. Not at all that I know of. Q. How is that, what is your answer? A. I don’t know. Q. You don’t know? A. No, sir. Q. Now then, isn’t it a fact that you plead guilty six times in the county of Johnson in the state of Iowa to larceny? A. I am not conscious of it. Q. You don’t say that you did? A. I don’t say that I did.”
It is evident that the foregoing (which, it will be noticed covers the period of the cross-examination) was brought out by the defense for the purpose of its effect in defendant’s behalf. Since it would scarcely be denied that the fact that one had been connected with the church for forty-five’ years and had been a minister of the gospel for more than thirty years would have a strong tendency to convince a jury that he would not be guilty of the crime of stealing unless it was met by something altogether inconsistent with the teachings and principles of a true church member and a worthy minister. The state therefore had the right to meet the defendant on the ground covered and laid down by himself. ■ It did no more than this in the questions asked and we think the trial court was correct in overruling the objections.
It would however perhaps be well for the state to avoid any criticism at another trial, to insert the words, “unlawfully and fraudulently,” just preceding the words, “taken by the defendant,” as now found in in the instruction.
The instruction was an unnecessary direction to the jury and should not have been given. The presumption of guilt which the law fixes on him who is found in possession of property recently stolen only finds application in an effort to ascertain who felo
We are finally asked to reverse this case outright on the ground that the evidence was not sufficient to establish fraudulent and guilty intent. It is sufficient to say that there is no merit in the request and that the record discloses abundant evidence to sustain the verdict. But for the errors mentioned the judgment must be reversed and the cause remanded.