194 Mo. 253 | Mo. | 1906
This prosecution was commenced by the prosecuting attorney of Jackson county filing an information in the criminal court of Jackson county, at the January term, 1905, wherein he charged that Charles Walker,, alias E. Johnson, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 23rd day of December, 1904, one red milk cow of the goods and chattels of William A. Gosnell and James O. Gosnell, then and there being, did then and there unlawfully and feloniously steal, take and carry away, against the peace and dignity of the State.
The information was verified. The defendant was arrested and arraigned upon said charge and entered his plea of not guilty, and at the April term, 1905, of said court, was tried, convicted and his punishment assessed at four years imprisonment in the penitentiary. Motion for new trial was filed in due time, heard and overruled, exceptions saved and an appeal taken to this court.
The evidence on the part of the State tended to prove the following facts: James C. Gosnell, on the 22nd of December, 1904, resided at 35th and Agnes streets in Kansas City, Jackson county, Missouri. He had in his possession a milk cow, belonging to himself and his father, William A. Gosnell. This cow was kept in a barn yard on his'premises, which yard was surrounded by a wire fence and two gates. About dark on the night of December 22,1904, the cow was seen in the lot by James C. Gosnell and his employee, Thomas Jones. That latter fastened the gates, tying one, and the other was closed with a latch. The next morning the fence was broken and the cow gone.' Not far from the lot Gosnell found a cow track corresponding to the track of his cow. and near the cow’s tracks, and lead
The cause was submitted to the jury under instructions defining larceny; on the presumption arising from the recent possession of stolen property; and on the defense of alibi and reasonable doubt. Other facts will be noted as occasion may require in the examination of the errors alleged to have been committed by the criminal court.
I. Counsel for the defendant insists that at the close of the State’s case, if only proper and legitimate evidence had been admitted, the court should have directed a verdict for the defendant.
Under this head, the counsel for the defendant argues at great length the insufficiency of the evidence tending to identify the defendant as the man Johnson who sold the cow to the commission company at the stock yards on the morning of the 23rd of December. Much stress is laid upon the fact that at the preliminary trial before the justice of the peace, several of the witnesses, Glascock and McReynolds, among others, only identified the defendant as Johnson from the fact that he wore felt boots, and that Gosnell was actuated by unfriendly feelings to the defendant. But, on the other hand, the witnesses on behalf of the State made out the following case: M.r. Gosnell testified to the ownership and possession of the cow, and that she was at his home on the night of the 22nd of December, 1904, in an enclosed lot; that next morning about seven or seven thirty o’clock, his cow was missing, and he found the tracks leading towards the stock yards; that he went
Mr. Hieronymus testified that he had lived in Kansas City for twenty years, and his business was that of selling hogs at the stockyards. He identified the defendant as the man who, on the 21st of December, came to the stock yards at the 12th street gate, and gave him the name of J. Smith; he had a cow to sell. Witness asked the defendant, “Who sells your cow?” and he says, “You folks.” Witness then asked him his name and he said, “J. A. Smith.’.’ Thereupon the witness says, “I took his cow up to block 25, and turned her over to the cattle salesman,” and said to the defendant, “I do not know how long it will be before your cow will be sold, ’ ’ and defendant says, ‘ ‘I am going out the 12th street gate, I have a horse and wagon out there. ’ ’ Witness testified that he was in the employment of the Campbell & Rosson Company on the 21st of December; that he had good opportunity to observe the defendant as he talked with him and walked with him; that the defendant had on a cap and felt boots with rubbers over them, had a short beard on his face at that time, and thinks he had on a duck coat. He testified that he had no doubt whatever of the defendant being the man who brought the cow to the stock yards on the 21st of December; that he made a memorandum in his book at the time.
W. PI. Gott testified that he was in the employment
Joe Hielman testified that he was a buyer at the stock yards, and saw the defendant there on the morning of the 21st of December, and recognized him as the man who came there with a cow to sell and gave the name of Smith, and his recollection was that he had on felt boots that morning, he did not pay much attention to his other clothing. He noticed that defendant had a freckled face, and that attracted his atttention.
Mr. W. H. Thompson testified that he wa,s the cashier and bookkeeper for the Campbell Bros. & Rosson Commission Company; he recognized the defendant; the first name he knew him under was Smith; he identified a duplicate scale ticket issued by the stock yards company of the weight of the cow that was sold by his firm on the account of J. Smith. When the cow was sold on the 21st of December, witness figured up the ticket and determined the net proceeds and gave defendant a check for the same. He delivered this check to the prisoner under the name of J. Smith that morning in the company’s office, and it was paid and came back with the return vouchers from the bank. On the 23rd of December, this same man, under the name of
Lee Glascock testified that he was at the office of Campbell'Bros. & Rosson on the morning of the 23rd of
McReynolds also testified that be was working at tbe stock yards on tbe 23rd of December, 1904, and tbe defendant came there and gave bis name as Johnson, and said be bad a cow to yard for Campbell Bros. &■ Rosson. He bad tbe cow tied behind a one-borse wagon, a milk cow, and be put ber in tbe yards, and gave him an order to tbe commision firm to let them know that tbe cow was there. ;
The marshal testified that when be arrested the defendant that afternoon, be bad on a pair of felt boots with big rubber overshoes over them; that be searched him after be brought him to jail, and found a five dollar gold piece in one of bis boots, three dollars in silver in tbe other; in tbe fob pocket of tbe first pair of pants, be found a scale ticket of the weight of a cow, this was tbe scale ticket identified by tbe witnesses, of the sale of tbe cow by defendant under tbe name of J. Smith on tbe 21st of December. He was asked where be got that, and be said, “I do not know anything about that.” I said, “this is a different cow and different weight from the one we are looking for.” The State also proved that tbe cow would be cheap at $30.
In tbe light of all this evidence, it is plain that tbe court committed no error in refusing to discharge- the prisoner at tbe close of tbe State’s case.
II. But it is earnestly insisted by tbe defendant that the court erred in permitting the State to show that
III. It is nest urged that the court erred in refusing to admit more evidence to establish an alibi, and in .striking out the evidence of David Ingle for the defendant. There is nothing to show that any other witnesses were offered in addition to those who did testify for
IY. It is insisted that the court erred in its 4th instruction to the jury on the question of the presumption arising from the recent possession of stolen property. The basis of this assignment is that the court in this instruction did not include in its enumeration of the evidence which the jury should consider as rebutting the presumption of guilt from the recent possession of stolen property, the evidence tending to prove an alibi: While the counsel for the defendant has not called our attention to this specific objection to' this instruction, it is to be noted that the instruction in and of itself is not comprehensive enough under the decisions of this court in State v. Kelly, 73 Mo. 608; State v. Sidney, 74 Mo. 390; State v. North, 95 Mo. 615; and if the instruction stood alone and had not been supplemented by instruction numbered 6, which fully covered the defense of alibi, it could hardly stand the test of the foregoing cases, but, as we have often said, the instructions of the court must all be read and considered together.
In State v. Riney, 137 Mo. l. c. 105, it was said: “The State having shown defendant in the exclusive possession of a pair of shoes stolen from the burglarized car so recently after the goods were stolen, it was entirely proper to instruct the jury on the presumption arising from such possession, and, as the court also instructed fully upon the defense of alibi, no error resulted from not qualifying the instruction on recent possession as to the rebuttal of the presumption of guilt from recent possession by proof of an alibi, as the two instructions necessarily had that effect and must be read together.” Upon the authority of that case it must be held that the court by its instruction on alibi cured the oversight in not qualifying the instruction number four as to the effect of an alibi rebutting .the
Y. In his motion for new trial, counsel assigned as error certain remarks of the prosecuting attorney in his address to the jury, but as no exception was saved to the ruling of the court, that matter is not before us for review. Under the evidence and the presumptions of law, the defendant has no ground to complain of the verdict of the jury, and the judgment of the court. The judgment is affirmed.