State v. Christian

161 S.W. 736, 253 Mo. 382, 1913 Mo. LEXIS 266

• Court: Supreme Court of Missouri
• Decided: December 9, 1913
• Status: Published

Opinion

PARIS, J.

This is a prosecution commenced against the defendant in the circuit court of Moniteau county upon an information which was filed therein on April 26, 1913. Since this information has been attacked by the defendant, both by a motion to quash directed toward the entire informaion, and by a demurrer to the second count thereof, we deem it necessary for a full understanding of the points involved, to set the information out in full. Omitting formal parts, it is as follows:

“J. B. Gallagher, prosecuting attorney within and for Moniteau county, Missouri, upon his information and belief, for an amended information, informs the court that Eddie Scott and Theo. Christian on or about the 4th day of February, 1913, at Moniteau county, Missouri, did then and there unlawfully and feloniously steal, take and carry away one bay mare, then and there being', the personal property of Cornelius Coleman, of the value of one hundred dollars, against the peace and dignity of the State.

“ J. B. Gallagher, prosecuting attorney aforesaid, upon his information and belief aforesaid, further informs the court that Eddie Scott, on or about the 4th day of February, 1913., at Moniteau county, Missouri, did then and there unlawfully and feloniously steal, take and carry away one bay mare, then and there, being, the personal property of Cornelius Coleman, of the value of one hundred dollars; and the prosecuting attorney, aforesaid, upon his information and belief aforesaid, informs the court that Theo. Christian, well knowing the said Eddie Scott to have done and committed the felony and larceny of the bay mare in the manner and form aforesaid, afterwards, to-wit, on or about the 5th day of February, 1913, at Moniteau county, Missouri, him the said Eddie Scott did unlawfully and feloniously receive, harbor, aid and assist with the felonious intent and in order that he, the said Eddie Scott, might then and there make his escape and avoid arrest, trial, conviction and punishment; he, the said Theo. Christian, then and there not standing in the relation of husband >or wife, parent or grandparent, child or grandchild, brother or sister by consanguinity or affinity to the said Eddie Scott, against the peace and dignity of the State. ”

The motion to quash, caption omitted, is as follows:

“Comes now the defendant, Theo. Christian, by his attorneys and moves the court to quash the amended information filed in this canse, for the following reasons:

“Because there is a misjoinder of parties defendant.

“Because there is a misjoinder of counts in the information.

“Because the first and second counts in the information are inconsistent with each other.

“Because the first count in the information charges both defendants jointly with grand larceny, and the second count charges the defendant Theo. Christian alone of the crime of aiding the escape of Eddie Scott.

“Because two distinct crimes created by different and distinct statutes are united in the same information.

“Because the information does not charge any crime. ’ ’

The above motion to quash being considered by the court and overruled, exceptions were duly and properly saved. Thereafter a demurrer to the second count of .the information was filed. This demurrer was in the usual form and substantially charged that the second count of the information was not sufficient to make out or charge against the defendant any offense against the law of the State. This demurrer was overruled by the court and exceptions thereto' also properly preserved. The case coming on for trial on May 17, 1913, the .trial jury by its verdict found defendant guilty as charged in the second, count of the information and assessed his punishment at imprisonment for a term of three years in the penitentiary. No finding whatever was made by the jury upon the charge contained in the first count, the jury passing it over in silence.

The court instructed, among other things, that although both counts were submitted to them for their finding, they must not convict 'on both; that they might convict Mm on the first count and acquit him on the second, or vice versa, or they might acquit Mm on both counts. The court also gave an instruction upon the recent possession of stolen property, predicated, without doubt, upon the charge contained in the first count of the information. TMs instruction is in the usual form and the contents thereof are not attacked. The point made is that no such instruction upon the facts should have been given.

Upon the burden of proof, the presumption of innocence and reasonable doubt, the court gave the following instrucion:

“The law presumes the defendant innocent until the State has proven his gMlt beyond a reasonable doubt; uMess the State has so proven his gMlt, you should acquit him, but such a doubt to authorize an acqMttal on that ground alone should be a substantial doubt of guilt, and not a mere possibility of Ms innocence.”

The court was asked by def endant to instruct upon circumstantial evidence, but this request was refused.

The facts as to the larceny of the mare, since defendant was not convicted of such larceny, need not be set out here at length; suffice it to say the proof shows that appellant’s codefendant, Eddie Scott, stole the mare from one Cornelius Coleman, who resided some twenty miles from the town of California in Moniteau county. TMs theft by Scott was committed on February 4, 1913. Scott appeared riding the mare into California on February ’5, 1913. His story as to the connection of defendant Christian (hereinafter called defendant simply), with the stealing of the mare is that defendant appeared at the farm of said Coleman on February 3,1913, during the absence of the latter, and hired said Scott for the promise of the sum of fifteen dollars, to ride the mare into California; that on the 4th day of February, defendant returned and assisted Scott to catch and bridle the stolen mare, and that Scott and defendant thereupon alternately rode said mare until they arrived in the vicinity of the town of California, when, pursuant to instructions from defendant, Scott stopped and stayed all night with one Kennedy, but defendant continued on back to his home in California. According to Scott, all that the latter did in connection with the theft of the mare was done pursuant to defendant’s instructions. Upon reaching California on the morning of the 5th of February, Scott rode the mare up- to a livery stable belonging to one Orr, and tied her first in the bam and later upon the street, he himself going into the barn to warm.

At this point many other witnesses come into the story. Their testimony is that Scott was introduced to defendant and that he became active in assisting Scott to make a sale of the stolen mare, which was very late in the day consummated, by selling her to' one Messerli for the sum of forty-five dollars. This sum was paid to Scott by Messerli by a check, which check was made out in the name of Scott. Defendant, who admits that he was to get ten dollars for helping Scott sell the mare, says that the sole connection with, or knowledge of either Scott or the mare, arose when he was made acquainted with Scott at Orr’s livery stable; that he there saw Scott for the first time in life. Scott on the other hand swears that all that he said and did about the theft of the mare and the sale of her, was done under the instructions of defendant; that he (Scott) was and is wholly innocent, and that he was doing what he did in bringing the mare to California and in selling her in order to earn the sum of fifteen dollars promised him by defendant, for that service.

After the cashing of the check at a saloon in California, a number of drinks were taken by both Scott and defendant and it was finally agreed (at whose suggestion it is impossible tO' say from the record) that Scott and defendant and defendant’s brother should come to Jefferson City to “have a good time.”

When the cheek was cashed Scott avers that he gave defendant fifteen dollars of the money, retaining himself thirty dollars; that he purchased the first round of drinks with another five-dollar bill and divided the resulting change with defendant; that it was the suggestion of defendant that the party come to Jefferson City;.that the railroad fares of all were paid by defendant and that defendant during the whole of this trip paid all expenses of whatever kind. On the other hand defendant avers that he got only the sum of ten dollars out of the purchase price of the mare; that this was according to agreement with Scott to pay defendant this sum for his services in assisting Scott to make the sale; that in addition he received only the sum of ten cents from Scott, which sum was to be paid to the livery stable man for some small service rendered to Scott, as the latter claimed; that Scott paid all railroad fares and for all refreshments of whatever kind consumed while at California or during the presence of the party at Jefferson City. Where the truth lies it is utterly impossible to say, since there is as much corroboration in favor of defendant’s assertions as there is for those' lof Scott.

The defendant, whose attitude and statements we have woven into the statement already, proves for himself a very good alibi, so far as the theft is concerned.

Some very strong circumstances eking out an alibi were furnished by some of the witnesses for the State. It was further shown by the State, that when the defendant boarded the train at California to come to Jefferson City he publicly in a loud voice requested a friend to advise his (defendant’s) wife that he was going to Jefferson City. The proof shows that defendant, Scott and defendant’s brother did come to Jefferson City, where they were arrested on the night of February 5, 1913, and placed in jail. When Scott was searched he had on his person but $5.45' in money, while there was found upon the defendant the sum of twenty dollars in bills and a small amount of silver.

Prior to the trial of defendant Scott seems to have entered a plea of guilty to grand larceny and was thereafter used by the State as its chief witness against defendant. It may be said in passing, and this fact will be hereafter more at length referred to, that Scott in the testimony which he gave for the State denied that he intended to- escape, or that he came to Jefferson City for the purpose of escaping, but that being wholly innocent of any intended wrongdoing, he was, when arrested, on the way back to the- neighborhood in which he had stolen the mare. If any other fact's shall become necessary to a full understanding of the points involved, they will be found in the opinion.

I. It is urged upon us as grounds for reversal (a) that the court erred in refusing to quash the information for that, (1) there was ¡a misjoinder of offenses which may not be joined in the same information, and (2) that there was a misjoinder of parties defendant; (b) that the court erred in giving instruction 4 on the recent possession of stolen property; (c) that the court erred in refusing to give the instruction asked by defendant, or any instruction, on circumstantial evidence, and (d) that the evidence adduced by the State was not sufficient to make out a case against the defendant upon the charge of being an accessory after the fact, for which he was convicted. These in their order.

Misjoinder of offenses.

Turning our attention to the first contention urged by defendant, we note that the information is against both Eddie Scott and Theodore Christian; that in the first count thereof both Scott and this defendant are jointly charged with having together and jointly committed the crime of grand larceny, in that as it was averred, they stole a horse from one Cornelius Coleman. In the second count of this same information the defendant alone is charged with an offense, that of being an accessory after the fact, for that defendant, knowing that said Scott bad (alone and unaided) stolen the self-same horse averred in the first count to have been stolen jointly by both Scott and defendant, acting in concert, did “receive, harbor, aid and assist . . . said Scott to make his escape and avoid arrest, trial, conviction and punishment.” Upon this latter count defendant was convicted. The jury made no finding upon the first count-, passing it sub silentio. Scott, it appears from the record, had, before defendant was put upon bis trial, pleaded guilty to tbe larceny charged against him in the first count.

This court has comparatively often had occasion to discuss one of the bilateral questions arising here, that is, bow far may tbe pleader, in one or more counts of an indictment, join charges of different crimes against the same defendant, but never before has there arisen, so far as we can find, the unique question here involved, of not only charging different offenses in different counts of the same information, but of charging in one count two persons as acting jointly in the commission of a crime, and in the other count charging one of the defendants only with committing a crime with which his coindictee had nothing to do> or at least in which he incurred no criminal liability and took no active part. No finesse of language can relieve the case from the ultimate truth of this bald statement.

Were the two offenses charged such as are permitted to be joined in the same information? We think not. The statute permits a count for larceny to be joined with a count for embezzlement, or with a count for obtaining property by any false pretense, or false token. [Sec. 5103, R. S. 1909.] If an offense by law comprises different degrees the information may contain counts for the several degrees of the same offense, or for one or more of them. [Sec. 5104, R. S. 1909.] In cases of burglary, where in the act of committing the burglary a larceny is also committed, defendant by statute may be charged with both offenses in the same count or in separate counts of the same information, and if found guilty may be punished by a separate term of imprisonment for each offense. [Sec. 4528, R. S. 1909.] 'In passing we may say that this is the only exception in our State to the rule that but one punishment can by law be meted out for the commission of a single criminal act. So far the statute prescribes the practice.

We have held, however, that a count for forgery may be joined with a count for uttering the instrument forged (State v. Carragin, 210 Mo. 351); and that a count fox larceny may be joined with a count for receiving stolen goods. [State v. Richmond, 186 Mo. 71.] In none of such cases, except that of burglary and larceny above adverted to, will more than one conviction he allowed to stand, and at the close of the case either an election must be made by the State or the jury must he instructed by the court that they can convict on but one count. [State v. Carragin, supra.] It goes without saying that in order to meet thei exigencies of the proof, it is well settled that the pleader may charge an offense like murder, or an assault with intent to kill in as many counts as may be reasonably necessary. [State v. Hargraves, 188 Mo. l. c. 348; State v. Jackson, 17 Mo. 544.] So also a count for an assault with intent to kill may be joined with a count for an assault with intent to rape, or to do great bodily harm, or with an assault to commit any felony. This from the very nature of these offenses, and more often from the necessities of the case, and by inference, from the very letter of the statute. [Sec. 4481, R. S. 1909.]

We have not been able to find any other permissible joinders of counts for different offenses in the same information, allowed by the decisions, or by the statutes of this State. Clearly then by the method of exclusion and inclusion we may deduce the rule (statutory exception excepted) that only snch offenses may be joined as arise ont of the same transaction, and which are so far cognate as that an acquittal, or conviction for one, would be a bar to a trial for the other. Judge Wagner in the case of State v. Daubert, 42 Mo. 242, expressed his view of the facts which will allow a joinder, thus:

“Where the offense charged in the second count is of the nature of a corollary to the original felony, as in larceny and the receiving of stolen goods, a joinder is good; and whenever there is a legal joinder, the court may exercise its discretion as to an election.”

It is evident that the instant case does not fall within the rule. The offenses charged in the: two counts of the information here are not cognate, and they do not necessarily arise from the same transaction. One may be an accessory after the fact to murder, arson, burglary, or to any other crime known to the calendar or written in the books. It was not a necessary incident to the theft of the horse here, that defendant became, as it is charged, guilty of being an accessory after the fact. It may better be said to have been a coincidence merely, since there is no crime to which it might not attach. Nor would a conviction for the theft here charged, necessarily negative guilt as to the crime of beiug an accessory after the fact.

Misjoinder of Defendants.

Upon the remaining branch of this question as to whether an information may charge in its one count a felony as having been done by two defendants, and in another count thereof charge one of the defendants with having alone committed another and different crime, defendant also makes stremous contention. In the instant ease, upon the facts of the second count as shown in evidence as well as under the law applicable thereto, Scott was guilty of no crime for permitting himself to be harbored, or aided or assisted to> escape so as to avoid arrest, trial, conviction and punishment for the theft of the horse charged against him in the first count. Scott had never been in custody on this charge, so> at law he had the right to escape if he could, whatever view casuists might take of the moral phase. He was in the case but the mere passive agent through whom defendant, as was charged, committed, and without whom' defendant could not have committed, the offense laid in the second count. Scott in a sense bore in law the same relation to the subject-matter of the second count, as the party assaulted bears to the subject-matter of - an assault with intent to kill.

Clearly the joinder of parties defendant here was improper. It would be improper even in a civil action and be demurrable. [Sec. 1800, R. S. 1909.] Scott and the defendant could not be sued in one count of a petition in a civil action upon a note (say) made by both, and defendant alone sued in another count of the identical petition upon an obligation with which Scott had nothing to do, and to which he was not a party against whom a judgment would lie.

The case of State v. Lehman, 182 Mo. 424, discusses fully the question of joinder of different defendants in the same count of an indictment. Under the facts in that case a joinder was held proper. That case was correctly held under the facts there in judgment, and no other view was possible. Had any other holding been made such holding would have been so vulnerable for other objections as that no conviction of the defendants or any of them would ever have been possible in law. As the learned judge who wrote the opinion of the court in that case, said:

“The general rule must be concededi, that where the offense of several defendants are separate and distinct, arise out of separate and distinct agreements or transactions, they should not be joined in the same indictment, but that is not this case.” [l. c. 452.]

It follows that the motion to quash was well taken for both, or either, of the misjoinders charged therein as occurring in the information.

Presumption: Possession of Recently Property.

II. It is contended by defendant that the court erred in giving instruction numbered 4 on the presumptions arising from the recent-possession of stolen property. In this, in the light of the evidence kere we think the defendant’s contentions 7 are well-founded, in point of fact, but that in the light of the conditions by which we are confronted in the record, the question raised by the objection is wholly academic. The instruction objected to has reference wholly to the offense of stealing the horse. On this charge defendant was hot convicted; so it is a little difficult to see wherein he was injured. We are not passing upon the contents of the instruction complained of here; we are merely considering whether upon the admitted facts any presumption of guilt accrued from the fact of the possession of the' horse by the defendant on the day following the theft thereof. Where the manner of getting the actual possession of property which has been recently stolen is admitted and fully explained by the evidence in the case, as was done in the instant case, and where the only question in issue is the capacity in which defendant holds such possession — whether feloniously or innocently — no presumption can arise against defendant from the mere admitted or known fact of possession. This instruction ought not to have been given. [State v. Warden, 94 Mo. l. c. 651.] It had no place in the record under the admitted facts, but for the reasons suggested, since defendant was not convicted of the offense with which the instruction had to do, he may not, we opine, successfully complain,. If it be urged that the instruction was competent because the fact of possession tended to prove the scienter here necessary in law, then the same reasoning applies. It was as impotent for the one reason as for the other.

Circumstantial Evidence: Instruction.

III. Touching defendant’s complaint that the court nisi ought to have instructed on circumstantial evidence, we may say there is no evidence in the record to justify the giving of an mstruction upon circumstantial evidence, Why we take this view, we need not discuss since this case must he reversed for other reasons.

Reasonable Doubt.

A general attack is made also upon the instructions given in the case, and upon all of them. Without taking the time or space to pass upon them all, we may say in passing that the instruction given on presumption of innocence, burden of proof and reasonable doubt, is not in the best form. To say no more it does not require the reasonable doubt which will justify acquittal to ‘ ‘ arise from a consideration of all of the evidence in the case,” or words of similar import. [State v. Cushenberry, 157 Mo. 168; State v. Temple, 194 Mo. 228; State v. Harper, 149 Mo. 514; State v. Maupin, 196 Mo. l. c. 174.] We do not say that the instruction as given is so defective as tq constitute reversible error, for it follows closely in substance that given in State v. Nueslein, 25 Mo. l. c. 124, which has been declared to be commendable. [State v. Bond, 191 Mo. l. c. 564.] But the better form of this instruction, as we show from the cases which we cite, refers in apt words as a basis for the doubt, to a consideration of all of the evidence in the case.

Aiding Thief to Escape: Insufficient Evidence.

IY. It is also most seriously contended that there is not enough evidence in the record to sustain the charge of being an accessory before the fact upon which defendant was convicted. We think this contention must also be sustained. Granting for the sake of the argument that there was proof sufficient to take the case to the jury on all of the other required elements in the case (State v. Miller, 182 Mo. l. c. 382), is there any substantial proof that defendant was in fact aiding and assisting Scott to escape in order that the latter might avoid arrest, trial and conviction? Upon this phase of the ease Scott says that defendant suggested coming to Jefferson City and that the defendant paid the fare of Scott to Jefferson City. The record further shows from the testimony offered by the State, that when defendant left California in company with Scott, he requested an acquaintance to inform his (defendant’s) wife that he had gone to Jefferson City, and that he didi come to Jefferson City is not denied, but on the contrary proven by the State. Here was no secrecy, but a publicity which negatives the position of the State. When arrested, as he says, and as the State does not dieny, he was on his way back to California. But that is not all, nor the most serious failure of proof. It was incumbent on the State to show that Scott was in fact trying to escape, before the defendant could be convicted for aiding him to escape. The testimony of Scott, upon whom alone the State relied for proof on this point, so far from showing that he was trying to escape', shows conclusively that he was not doing any such thing. Scott says arroyos of this very point: “I was not trying to get away at all; I had no intention of getting away; I was aiming to go right back out there to Coleman’s.”

The story of Scott is throughout utterly incredible, and filled with numerous and palpable contradictions. It is not capable of reconciliation with much of the other testimony adduced by the State. At this distance, relying, as we must, upon the cold record, it would seem that the conviction of defendant was largely brought about by his own bad reputation; that having by an ill-spent life, earned the punishment meted out to him, he was convicted on what is called in the vernacular “general principles,” rather than upon the evidence in the case. However much we might personally sympathize with the doctrine of a conviction on “general principles” when rightly applied in a case of crying ne&d, we can give no effect to it here, bnt must look to the record, which we do, and hold there is not evidence enough to sustain this conviction. For this and other reasons set out we reverse and remand the case, with the suggestion that if the State is not able materially to strengthen the case made, another trial will be a useless formality.

Brown, P. J., and Walker, J., concur.