144 Mo. 341 | Mo. | 1898
—The defendant, on a charge of robbery of one Moore, was convicted in the circuit court of the city of St. Louis. The indictment is as follows:
“The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly empaneled, sworn and charged, iipon their oath present that John Waters, on the sixteenth day of November in the year of our Lord one thousand eight hundred and ninety-one, at the city of St. Louis aforesaid, in the St. Louis Criminal Court, was duly convicted on his own confession of the offense of grand larceny, and in accordance with said conviction was duly sentenced by said court to an imprisonment in the penitentiary of the State of Missouii for the term of two years, and was duly imprisoned in said
The testimony on behalf of the prosecution tended to show the following facts: At about 11:30 o’clock r. m. on Sunday, February 7, 1897, one Henry Moore, a negro coachman, was walking southward across the Twelfth street railroad bridge, on his way home from the theatre, when he was suddenly accosted by two men, who presented revolvers, ordered him to throw up his hands, and took from his person $3.25 and started to run away. Another man named Anderson, was also crossing the bridge southward .near the same spot, and he was accosted by a man with a revolver, who ordered him to throw up his hands, went through, his pockets but found nothing. Just then an electric street car came up and the
The appellant was indicted under the habitual criminal section, it being averred that he had on November 16,1891, been convicted of grand larceny in the St. Louis Criminal Court, upon his own confession, and had been sentenced and committed to the penitentiary. To prove this allegation the State introduced a record of the conviction of December 16, 1891, which was admitted over appellant’s objection and exception; and further undertook to identify appellant as the same party by a police officer, who testified on direct examination that appellant “is the same person who pleaded guilty to that charge,” and on cross-examination, “I was notin court at the time, did not see or hear the defendant plead guilty to anything.”
In due time appellant filed his motion for hew trial and in support thereof filed the affidavit of one James McDermott, who had been a prisoner in the St. Louis jail, on a charge of robbery, to the effect that he (McDermott) was the person who had committed the offense with which appellant was charged, and that he had never disclosed the fact to appellant or appellant’s attorney until after appellant was convicted; that on the occasion of the robbery he wore a plush cap (which he still wore when arrested and put in jail) and a brown overcoat with the collar turned up; that he was just the same height as appellant, though stouter in build and rounded in the face. In addition to this affidavit appellant filed his own to the effect that he had no knowledge or information prior to the trial, but only after his conviction of the matter stated in McDer
To reverse the sentence defendant by his counsel insists upon only two propositions: First, that upon the newly discovered evidence of the convict McDermott he was entitled to a new trial; second, that the court erred in admitting the record of the former conviction of defendant for grand larceny. Of these in their inverse order. While it is true that error is presumably prejudicial and the burden is on the State to show that it was not, we think the verdict itself conclusively establishes that the jury did not find that the defendant was the person who pleaded guilty and was sentenced for grand larceny on December 16, 1891, from the fact that if they had, they would have been bound to affix his punishment at imprisonment for life, robbery in the first degree being punishable not less than five years, and may extend to imprisonment for life. Sections 3959, 3533. And hence no harm could have resulted to defendant from the attempt to show the previous conviction as he received the lowest punishment for a first offense. But the variance merely in the date of the judgment, being in the same court and at the same term, did not amount to substantial error, and the circuit court must have so found by admitting the record. State v. Sharp, 106 Mo. 106; State v. Sharp, 71 Mo. 218.
II. Did the circuit court err in refusing to grant a new trial because a convict in the penitentiary gives an affidavit tending to show that he was the robber and not the defendant. Inspection of the affidavit itself amply justifies the trial court in declining to grant a new trial based upon its statements. Outside of the utter improbability of any sensible jury crediting the evidence of this self-confessed thief, robber and con
The circuit court unquestionably exercised a wise discretion in not granting a new trial upon such a showing. The judgment is affirmed.