State v. Levy

170 S.W. 1114, 262 Mo. 181, 1914 Mo. LEXIS 155

• Court: Supreme Court of Missouri
• Decided: November 24, 1914
• Status: Published

Opinion

BROWN, J.

Defendant was charged with stealing a pocketbook containing $61.65 from one Doctor Burke on January 7, 1914, and also with having previously been convicted of the crime of burglary in the State of West Virginia, and, having been found guilty as charged, was sentenced to serve a term of seven years in the penitentiary. After unavailing efforts' to secure a new trial and to arrest the judgment he appeals.

The evidence on the part of the State tends to prove the crime charged against defendant, and is substantially as follows:

Defendant was seen standing in front of the union depot in St. Louis, Missouri, a few minutes before Doctor Burke came out of said depot and attempted to board a northbound 18th street car. Burke was carrying a valise and leading a sick woman, and while on the platform of the car he felt ‘ ‘ an unnatural disturbance” in his pants pocket. Before the car started he discovered that his poeketbook was gone and immediately got off the car. Bolice officer Stinger was on the same car and saw defendant hurry through the car and get off at the front end thereof. This act. of defendant aroused the suspicion of the police officer and he also got off the car in time to see defendant board another car going south on 18th street. Upon being informed that Doctor Burke’s poeketbook had been stolen the officer followed defendant on the nest car and overtook him at 18th and Gratiot street. When first seen at Gratiot ^street defendant was coming towards the street car track, and when asked by the officer what he had been doing he replied that, he had gone to Gratiot street to see a lumberman, but had failed to find him. He was then arrested for the alleged theft of Doctor Burke’s poeketbook and brought back to the depot, where he announced that he had plenty of money, but had not taken any from Burke. Burke testified that he had in his poeketbook when the same was stolen two twenty-dollar bills, one five-dollar bill and a ten-dollar gold piece dated 1902; also some smaller change, among which were five pennies that he had carried for sometime as keepsakes; that these pennies were, dirty and one of them of a dark color.

At the police station defendant was searched ond in one of his pockets was found a roll of one-dollar bills “nicely folded” and in another pocket was found two twenty-dollar bills and one five-dollar bill, not folded, but all “ crumpled. up; ” also some smaller change, including five pennies of the same color and description as those Doctor Burke had in his pocketbook.

When no gold was found in defendant’s pockets he remarked that he had no ten-dollar gold piece, and that Doctor Burke had lied in charging him with taking his pocketbook and money. However, the police officer continued the search and when defendant’s underclothes were removed a ten-dollar gold piece fell out of them. This gold piece bore the date of 1902.

The police officer then went back to Gratiot street, where he had arrested defendant, and, about three hundred feet from where the arrest was made, found Doctor Burke’s -empty pocketbook lying near some piles of lumber.

Defendant testified that he went out on Gratiot street to call on a lumberman for whom he had been selling lumber, but there was no lumberyard, or office in that part of the city. Defendant also stated that he recognized the ten-dollar gold piece found in his underclothes as the same coin on which he had made a small mark with an ice pick several months before he was arrested.

The defendant, further testifying in his own behalf, admitted that he had been convicted in Ohio county, West Virginia, of the crime of burglary, and that he had served a term in the penitentiary of that-State and had been discharged. He also testified that at the time he was so convicted he was under the age of eighteen years.

To save the space which would be consumed in repeating them, we will note the alleged errors assigned by défendant in connection with the conclusions we have reached.

_Transcript. I. After defendant rested, the State introduced what purported to be a transcript of an indictment presented against defendant in the criminal court of Ohio county, West Virginia, charging him „ , ° , ? with the crime ot burglary, which transcript also embraced a copy of a judgment showing that he was convicted, in said criminal court under the aforesaid indictment. Counsel for defendant objected to the introduction of this transcript on the sole ground that defendant was under the age of eighteen years when said judgment of conviction was entered, and that, under the laws of Missouri, if he had been convicted of committing. the same crime in this State while under eighteen years of age he could not have been sentenced to the penitentiary, but would have been sent to the reform school. That, therefore, the conviction in West Virginia could not be made the basis of a charge of former conviction, as provided by section 4914, Revised Statute 1909. The aforesaid transcript was admitted and defendant excepted; the transcript was thereupon read into the record by the circuit attorney. The court did not err .in admitting the tanseript over the objection made. There was no evidence of defendant’s age before the court except his own testimony, and the jury had the right to disbelieve that evidence if they thought the defendant had testified falsely.

If it is true, as asserted by defendant’s learned counsel, that a boy convicted of burglary in this State when under the age of eighteen years cannot be sent to the penitentiary, and that such conviction cannot' be treated as a former conviction as defined by section 4914, supra (a point which we need not and do not decide in this case), the defendant’s evidence that he was less than eighteen years of age when convicted in West Virginia raised an issue which could only have been dealt with by instructions. If defendant’s theory of the effect of his former conviction is correct, then it would have been proper for the trial court to have instructed the jury in substance that although they might find defendant had been convicted of the crime of burglary in the State of West Virginia, if they further found and believed that at the time of such conviction he was under the age of eighteen years, they should disregard such former conviction in determining the duration of his punishment in this case; and that- if they found him guilty of stealing the property of Doctor Burke, as charged in the information, they should fix his punishment at not less than two nor more than five years in the penitentiary. Defendant’s attorney insists that because defendant testified that he was under the age of eighteen when convicted in West Virginia and there was no other evidence of his age the court erred in submitting to the jury the issue of his former conviction. In this insistence he is in error, because a jury is never precluded by the oral evidence of either the State or defendant, and may always reject evidence which they'do not believe to be true.

The trial court omitted to instruct the jury in regard to the alleged fact that defendant was under eighteen years of age when convicted in the State of West Virginia; hence if it committed any error in that regard (a point which we do not decide) it was an error of omission to instruct, and not an error in any instruction given, consequently such alleged error should have been specifically called to the attention of the trial court in defendant’s motion for new trial.

Upon a careful inspection of defendant’s motion for new trial we find therein no specific complaint of the failure of the court to instruct upon this point, so that the issue raised, or attempted to be raised, by defendant’s testimony that he was under eighteen years of age when convicted in West Virginia is not before us for review, because not mentioned in the motion for new trial. [State v. Conway, 241 Mo. 271; State v. Dockery, 243 Mo. l. c. 599; State v. Sykes, 248 Mo. l. c. 712; State v. Sydnor and Foster, 253 Mo. 375.]

Objection Too Late. II.' After the aforementioned transcript was ad'noitted and read into the record by the circuit attorney, the defendant objected to it on the additional ground that it was not properly .certified and authenticated under the laws of the United States, which objection was overruled and an exception saved, which last ruling of the court is now urged for reversal. This insistence cannot be sustained because this objection came too late. "When first offered in evidence defendant’s attorney informed the court that the transcript was “in proper form.” When improper evidence is offered it is the duty of the party who might be injured by its admission to object specifically by then and there informing the court why such evidence should not be admitted. [State v. Pyles, 206 Mo. l. c. 632; State v. Crone, 209 Mo. l. c. 330; State v. Wellman, 253 Mo. l. c. 314.]

An admission made by an attorney in open court during the trial of a cause against the interest of his client is presumed to be true. [Pratt v. Conway, 148 Mo. l. c. 299; Walsh v. Railroad, 102 Mo. 582.] In Pratt v. Conway, supra, Judge Gantt, in speaking for this court, said:

“Courts are warranted in acting upon the admissions of counsel in the trial of a cause. They are officers of the court, and represent their clients, and their admissions thus made bind their principals.”

Certainly no court should be convicted of error for admitting and treating a document as properly certified when the complaining party by his own admissions had led the court to believe that it was “in proper form.”

Instruction. III. Defendant also complains of instruction number 3 given by the court of its own motion, on the ground that it assumes that.the money found in possession of defendant was the identical money recently stolen from Doctor Burke. This instruction reads as follows:

“If you find from the evidence that the money, chattels and personal property or any part thereof mentioned in the information was stolen from the person of Milton C. Burke, and that recently thereafter snch property, or any part thereof, was found in the possession of the defendant, and that the circumstances connected with his possession, when first found in snch possession, were of snch a character as to demand of him an explanation of his possession, and that he failed to make snch explanation in a manner consistent with his innocence, then he is presumed to be the person who stole such property, and this presumption will be conclusive against him unless overcome or repelled by evidence, and the burden is on the defendant to adduce the evidence to overcome or repel snch presumption to your reasonable satisfaction, but not beyond a reasonable doubt, unless overcome or repelled by evidence introduced by the State.

“Such possession, to raise the presumption of guilt, must have been personal, recent, exclusive and unexplained and must have involved a conscious assertion of property by the defendant,-and if any one of these constituents is wanting, then such possession will not raise the presumption of guilt.

“If at the time the defendant was so found in the possession of such property, or any part of it, he gave an explanation which appears reasonable and probably true and consistent with his innocence, then before you can find him guilty -upon a presumption arising from such possession you must find beyond a reasonable doubt that such explanation was false.”

We do not think this instruction is subject to the criticism leveled against.it. It requires the jury to find that the property found in the possession of defendant was recently stolen from Doctor Burke before they are permitted to presume-that defendant is the party who stole the same.

Misconduct of Prosecutor. IY. A further assignment of defendant is that the court committed reversible error in permitting the assistant circuit attorney in his opening statement of the case to detail to the jury certain alleged evidence of attempted bribery of the prosecuting witness. Of course, a prosecutor should not in his opening statement refer to evidence which he cannot legally introduce; but the trial court could not foresee what the evidence in the cáse would be, and after the prosecutor failed to introduce the promised evidence of attempted bribery the jury were properly instructed to disregard the statements of the prosecutor as to such attempted bribery. ■We think this cured the evil effect, if any, produced by the misconduct of the prosecutor in mentioning the alleged evidence which he was unable to introduce. It is undoubtedly true that when a prosecutor promises a jury to place before them certain evidence which he cannot or does not produce, his failure to make out the case which he has outlined in his opening statement is liable to prove a boomerang, so to speak, and lead the jury to believe that the charge has not been proven.

If the case was a very close one, and the conviction rested upon testimony that was unsatisfactory, we might consider this point as worthy of serious consideration, for, as we said in the cases of State v. Hess, 240 Mo. 147, l. c. 160 1; State v. Horton, 247 Mo. 657; and State v. Baker, 246 Mo. l. c. 376, the misconduct of a public prosecutor will be weighed in connection with the facts of each case, and when the State’s case is weak it will require less misconduct on the part of the prosecutor to work a reversal than where, as in this case, the evidence of defendant’s guilt is very strong. [State v. Helton, 255 Mo. l. c. 183.] This assignment is overruled.

Evidence. Y. ^Defendant further insists that the evidence in this case was insufficient to warrant the giving of an instruction on the presumption of guilt which arises from the possession of recently stolen property, citing the case of State v. Sasseen, 75 Mo. App. l. c. 202. Of course, it is well known that a great number of bills and coins of each series issued by the United States are in circulation among the people, but that fact in this case only goes to the weight to be given to the State’s witnesses.

In the case of State v. Griffin, 71 Iowa, 372, there was found in the ice box of the defendant, a saloon-keeper, twenty-five dollars in gold coins of the same denomination as those stolen the day before from one of the patrons of the saloon. In that case the prosecuting witness claimed to be able to identify the coins found in defendant’s ice box by a small mark he had placed on them, and on this evidence it was held not error to submit to the jury the presumption of guilt arising from the unexplained possession of recently stolen property..

In the case at bar the minute description given by Doctor Burke of the gold coin and pennies found in defendant’s-possession, to my mind, points with more certainty to defendant’s guilt than did the alleged mark on the coins in the Griffin case, for the reason' that experience teaches us that it is quite an unusual thing for'anyone to actually mark or deface bills or coins, but both coins' and currency frequently become so discolored or worn by usage as to give them a peculiar appearance by which they can be identified with reasonable certainty.

The gold coin found in defendant’s underclothes, and which he tried to conceal, bore the same date as the one which was stolen from Doctor Burke, and the pennies found in his possession were dirty, and one of them of a dark color, the same as the five pennies which were taken from the prosecuting witness. The following additional cases tend to support the conclusions we have reached on this point: State v. Newhouse, 115 Iowa, 173; People v. Linn, 23 Cal. 150; People v. Wong Chong Suey, 110 Cal. 117. This assignment is also ruled against defendant.

We find no reversible error in the record of this case. Defendant was represented by resourceful counsel and had a fair trial. Let the judgment be affirmed.

Walker, P. J., and Faris, J., concur.