State v. Franke , 159 Mo. 535 ( 1901 )

SHERWOOD, P. J.

Burglary and larceny the charge, resulting in a bifurcate verdict, one branch of it finding defendant guilty of burglary in the second degree and awarding as punishment three years in the penitentiary, the other finding him guilty of larceny and assessing his punishment at two years in the same place.

The house of Mrs. Mary A. Korf, who lived about five miles south of St. Joseph, was burglariously entered on the afternoon of the sixth of November, 1899, while Mrs. Korf was temporarily absent, and a watch and some jewelry stolen from the house. Returning home shortly afterwards, Mrs. Korf discovered her loss and informed her neighbors, who started in search or chase of the thieves, and it seems that they were pursued before they had both reached their conveyance, a road wagon drawn by a sorrel horse. The one thus pursued threatened his pursuers with a gun and in this way was enabled by cutting across fields to rejoin his fellow-thief and this being done they put whip to their horse whose head was turned northward toward St. Joseph, and he went along at a rapid rate with the neighbors in pursuit, when a horseman, one of the pursuers, was fired on by one of the occupants of the vehicle, and some of the shot struck in the road only a few feet from the mounted pursuer. The firing of this shot somewhat checked the pursuit, and enabled the pursued to get such a start as enabled them to reach South St. Joseph before they were sufficiently hard pressed to compel them to leave their road wagon and seek safety in flight. On the way to that point, as well as on their outward-bound trip, defendant was seen and recognized by three or four persons and that he and the one with him had a single-barrel shotgun between them in the conveyance.

The occupants of the road wagon abandoned it, it seems, in the vicinity of the stock yards. When their conveyance was searched by the authorities, two overcoats, one a blue one, in the pockets of which were found several loaded shells and one or two empty ones, and a single-barrelled gun, loaded, were found and about two dozen loaded shells of the same calibre were found in defendant’s house in a kitchen safe on the night of the arrest. When arrested and brought to the police station, defendant openly admitted that the blue overcoat was his; but being privily asked by a reporter for a newspaper who had heard the just-mentioned admission, stated the coat was not his “exactly,” but that he had “worn it lots of times.” Several persons, among them policemen, stated that during the two or three years next preceding the date of the burglary, they had frequently seen defendant wearing the blue overcoat. The road wagon and the sorrel horse were shown to belong to defendant’s brother, and defendant and Ramsey, or “Dutch Red” his companion, and who was indicted with him, but made his escape, were seen in the road wagon, having a shotgun, and a sorrel horse hitched to the wagon, and that this was about 1 or 1:30 in the afternoon of the day the burglary was committed, and was close to Jack and Al’s saloon, near where defendant’s brother had a shoemaker’s shop. Defendant and the other occupant of the road wagon then drove off in a southerly direction. Defendant states he only went as far as a piece of work he wanted to look at, and then got out, and let his companion go on without him. The same reporter states that at defendant’s house on the evening of the sixth of November, defendant admitted to him, or in his presence, that he had been working laying bricks all day until 2 o’clock, when he went hunting. There was also testimony showing that defendant had worked for D. A. Turner who lived about a quarter of a mile from Mrs. Korf’s house,, and that defendant had picked apples for him four or five days beginning about the fifteenth of October or a little later next preceding the burglary; that at that time Turner had a double-barrelled shotgun, number 12 calibre, which was in the rooms his boys usually slept in in warm weather; that this gun remained there as late as the twenty-fourth or twenty-fifth of October, but disappeared from, his house between the date last mentioned and the date of the burglary, and was subsequently found in defendant’s house, on the eighth or ninth of November, between the laths and the rafters. One of the triggers of this gun had been repaired with a small piece of brass which made and marked its identity very conspicuous,

Henry Erans, a policeman, who assisted in making the arrest, was testifying, when the following occurred:

“Q. What did you find at the house ?

“A. I asked defendant’s wife if Mr. Eranke was at home, and she said he was not, and I said I would like to see him on police business, and she said if I wanted him I could go to her father’s; and I insisted on seeing if he was there, and she said there was no use of bothering her and the children; and in tbe meantime, I walked in, and while I was in there Mr. Eranke walked ont of another room — Mr. Eranke came out of an adjoining room while I was talking to her.”

[The defendant objected to the foregoing evidence as to any statements the witness attributed to Mrs. Eranke on the. ground that her statements are hearsay evidence and are incompetent as against defendant and because said statements are not shown to have been made in his hearing or presence, and defendant moved the court to strike out said evidence. The court overruled said objection and said motion to strike out. To which action in overruling said objection and said motion, the defendant at the time duly excepted.]

The foregoing statement in brackets was interlined in manuscript in the statement in regard to defendant’s wife.

“The court: Of course, there is no objection made to this; but it is incompetent testimony.”

1. This excerpt from the bill o'f exceptions is passing strange, and utterly contradictory. The court says, “There is no objection made to this,”-and yet it seems, if interlineations are to count, that there was objection made to the evidence just above set forth.

Either the judge through inadvertance permitted those interlineations to be made before signing the bill,, or else they were subsequently made without his consent.

But however that may be is wholly immaterial, inasmuch as the wife’s statements did not tend to incriminate her husband. It is true that her statement as to her husband’s absence from the house was false, but its falsity became apparent when her husband became apparent by walking in from another room. The testimony as to Mrs. Eranke’s statements was incompetent, but harmlessly so.

2. There was testimony on the part of the defense to have warranted the jury in finding a verdict in his favor, but the jury were the appointed triers of the facts and of the issue joined, and unless misinstructed and exception saved, that verdict is final. And certainly there was much evidence, as already related, to warrant the jury in finding as they did.

It was by no means necessary that any of the witnesses should positively identify defendant as the one they saw passing by in the road wagon. It sufficed that the witnesses believed that the person they saw was defendant. In a case which arose in Massachusetts, the witnesses would not swear that the prisoner was the same man they saw on the wagon driving it off; but that “he resembled him.” This testimony was given in a case where the prisoner was charged with larceny of the wagon and also of the horse hitched thereto; and it did not appear that they had ever seen or known the prisoner before, and the sole question in controversy before the jury was whether the prisoner "was the person who stole the wagon. Upon this state of facts, the defendant asked 'the court to instruct the jury “that as no witness sworn in the case had given evidence that the defendant was the man who committed the crime set forth in the indictment, or the man who was seen in the possession of the stolen property, the jury would not be justified to find the defendant guilty.” But this instruction was refused and one given by the trial court in accordance with the views announced by the Supreme Court. That court said: “Upon this question of identity, the evidence offered was all of it competent, and proper for the consideration of the jury. It is impossible to say that it had no tendency to convict the defendant. Its sufficiency was to be -estimated and weighed exclusively by them. It is not necessary that any one witness should distinctly swear that the defendant was the man, if the result of all the testimony, on comparison of all its details and'particulars, should identify him as the offender.” [Com. v. Cunningham, 104 Mass. 545.]

To the like effect, see Greenwell v. Crow, 73 Mo. 638; State v. Babb, 76 Mo. 501; State v. Weber, 156 Mo. 249; 1 Greenleaf, Evid. (16 Ed.), sec. 440; Stark, Evid. (10 Ed.), 173.

But Mrs. Adcock testified as to defendant’s identity with, almost positive directness. She had previously identified him at the police station, and she identified him when on the witness stand. BEer story about the matter is substantially this: She had seen defendant before at her house some four and one-half miles south of St. Joseph in the Turner neighborhood; he was picking apples and came to her house one morning, and ate dinner. On the afternoon of November 6, 1899, about half past four o’clock, she was standing on the east side of the road which runs north and south there in front of her house; there she saw two men in a buggy drawn by a sorrel horse going north as fast as the horse could go; they had a gun between them in the buggy; defendant was on the side of the buggy next to her, and when he noticed her observing him, pulled down his hat and turned away his head, and a man on horseback, apparently in pursuit, was coming on behind the buggy. Asked by defendant’s counsel: “Are you absolutely sure that you saw the defendant at that time, without any doubt whatever ?” she answered, “I firmly believe I did.”

• 3. The instructions in this case including the subject of alibi, were such as have frequently received the sanction of this court, and fully covered the ease. This fact makes it unnecessary to discuss the refusal of defendant’s instructions.

4. Eelative to the admissibility of evidence respecting the Turner double-barrelled gun; that gun was stolen from Turner’s house, only about a quarter of a mile distant from Mrs. BEorf’s, between the twenty-fifth of October and the sixth of November. This evidence was competent as showing the guilty intent of defendant. [State v. Balch, 136 Mo. loc. cit. 109, and cases cited.]

Eor these reasons, judgment affirmed.

All concur.