State v. Goetz , 34 Mo. 85 ( 1863 )

Ray, Judge,

delivered the opinion of the court.

The defendants, together with one Elizabeth Wohlman, were indicted for stealing various articles of jewelry from the store of Eugene Jaccard, in the city of St. Louis, on the 7th of November, 1861. Upon the trial, it was shown- that defendants, accompanied by two small children, were, on that day, in the store of Jaccard examining and pricing goods, and while so engaged the clerk missed several articles which he had placed upon the counter for their inspection; and, suspecting that defendants had taken them, procured their arrest; whereupon several articles of jewelry, such' as lockl ets and breastpins, of considerable value, were found in their possession, or dropped by them on the street on their way to the prison. The theory of the defence was that the property was' taken by the children, and placed by them about the persons of the defendants.

Against the objections of the defendants, the -State gave evidence tending to prove that, on the same day, and near the same hour, and at stores in the vicinity of Jaccard’s, the defendants had feloniously taken other articles from other persons. The admission of this evidence is the principal ground of error relied upon for a reversal of the judgment.

As a general rule, evidence of matters other than those charged in the indictment are inadmissible; and the reason of the rule is obvious enough, for when a party is charged with a particular offence he has notice to be prepared to defend himself; but he cannot be prepared to defend himself against a charge of which he has had no notice, and which is exhibited against him for the first time while on trial for another and distinct offence. But this rule is subject to various exceptions, rendered necessary by the difficulty which the prosecution labors under to establish the intent with which the act is done. Thus, upon an indictment for uttering a forged bank note", knowing it to be forged, evidence may be given of other forged notes having been uttered by the prisoner, in orde.r to show his' knowledge of the forgery. If such evidence was inadmissible, it would be impossible, in ninety-nine< cases out of a hundred, to fix a criminal intent upon théoffender. •;

So, on an indictment against a receiver for receiving several stolen articles, if it be proved that they were received at several times, thd prosecutor may be put to his election; yet evidence may be given of all the receipts for the purpose of proving guilty knowledge. (2 Russ, on Crimes, 777.)

So,, in a case when the prisoner was indicted for forgery and littering witli guilty knowledge a bill of exchange purporting to be drawn upon a certain banking-house, it was held that "other forged bills upon the same house, which were found upon the prisoner at the time of his arrest, were admissible as evidence of guilty knowledge. (Spencer v. Commonwealth, 2 Leigh, 751.)

On an indictment for an assault with an intent to commit a rape, evidence of previous assaults on the prosecutrix are admissible to show the intent with which the assault in questipn was committed. (Williams v. The State, 8 Humph. 585.)

■,So, on an indictment for administering 'sulphuric acid to horses with intent to kill' them; administering at different times was permitted to be shown in order to demonstrate the intent. (Rex v. Mogg, 4 Carr & Payne, 364.)

. Upon an indictment for maliciously shooting, if it be questionable whether the shooting was by accident or design, Mr. Russell says, proof may be given that the prisoner at another time intentionally shot at the same person.

Various other cases might be referred to, in which evidence of other offences than that charged in the indictment has been admitted to prove intent, but they fall within some of the exceptions to the general rule above stated; but we have been unable to find any reported case in which, upon a trial for larceny, evidence of another and distinct larceny was admitted to establish the one charged in the indictment. Upon the contrary, we have found cases in which it was held that such evidence was inadmissible, unless it could be shown that some connection existed between the two felonies.

In Regina v. Oddy, 6 Brit. Crim. Cases, 266, cited by the prisoner’s counsel in this case, it was holden that, on the trial of an indictment containing counts for stealing, and for receiving the property of A. knowing it to be stolen, evidence of the possession by the prisoner of other property stolen from other persons at other times was not admissible to prove either the stealing or the receiving.

In Barton v. The State, 18 Ohio, 221, the defendant was tried upon an indictment for the larceny of a mare and gelding and a two-horse buggy wagon. On the trial, it was proved that the defendant hired the property from Taylor & Adams for the alleged purpose of going to a town called Avon, a distance of about thirty miles, and that on leaving he drove to Painesville, about thirty miles distant in an opposite direction, and wa's arrested on the same night. For the purpose of showing that the prisoner, when he hired the horses, did not intend to return with them, the State proved by one James Eberhart that, on the night before the defendant drove off the horses, he lodged with witness and stole from witness twenty-five dollars in gold. The Supreme Court of Ohio held that the evidence was clearly inadmissible.

The case of Walker v. The Commonwealth, report ecHn 1 Leigh, 574, and in which J. Brockenbrough delivered a very learned opinion, is, in many respects, very similar to the case at bar. The defendant was indicted for stealing a watch, of-, the value of fifty dollars, the property of one Elizabeth Bol-. ton, and the Commonwealth introduced evidence to show that the watch had been taken, without the consent of the owner,’ from her house, and on the same day was found in"possession of the prisoner. The prisoner insisted that it was loaned to him by said Bolton; and for-the purpose of establishing the felonious intent, evidence was given by the prosecution that, on the same day he took the watch, he also stole a cloak from another person. Upon an appeal to the General Court of "Virginia, this evidence was held, inadmissible, and the judgment of the lower- court reversed. ■' ' •

In the case at bar, the State had the benefit of the usual presumption arising from the recent possession of the stolen propérty, and was therefore not driven to the necessity of proving • intent by proving other felonies committed about the same time; and it is not perceived, therefore, how this case can be brought within any of the exceptions above referred to.

The offences proved were separate and distinct, and the defendants might have been indicted for each and every one of them. Though committed on the same day, and under circumstances of a similar character, yet they are not so blended or connected that the investigation of one involves an inquiry into the other.

We are free to admit that the question is not free from difficulty, but, as at present advised, are inclined to the opinion that the evidence was inadmissible; for which reason the judgment will be reversed and the case reihánded for a new trial,

the other judges concurring.