State v. Phillips , 160 Mo. 503 ( 1901 )

BURGESS, J.

At the September term, 1899, of the criminal court of Jackson county, the defendant was convicted and his punishment fixed at two years’ imprisonment in the penitentiary, under an indictment theretofore presented by the grand jury of said county charging him with grand larceny in stealing a cow, on the eleventh day of May, 1898, the property of one Charles Harris. After an unsuccessful motion for a new trial defendant appeals.

The evidence showed that on the night of May 11, 1898, defendant stole from the pasture of one Charles R. Harris, several miles from Kansas City, Missouri, in Jackson county, two cows, which he drove to that city and on the morning next following sold to the firm of Fish, Tower & Doyle. Harris went to Fish, Tower & Doyle’s place of business on the same day, and learned that one of the cows had been sent to pasture in Kansas about ten miles from Kansas City. He then went to the pasture and found her, identified her as his cow, and in a few days thereafter took possession of her. It was also shown that about the twenty-first day of April, 1898, defendant stole from one W. N. Hudspeth, in the same neighborhood, three milk cows, and disposed of them to the same parties.

Defendant testified that he bought all the cows in Kansas City, Missouri, the Harris cows from a man whom he' did not know, but who said his name was Owens, and the Hudspeth cows from a man whom he did not know7, but who said that his name was Johnson, and that he would know the men if he v?ere to see them.

Defendant’s first complaint is that error was committed in admitting evidence of the theft of the Hudspeth cattle.

As a general rule, evidence of a separate and distinct offense is not admissible against a prisoner upon trial for a specific offense, but acts of the defendant similar to the one for which he is being tried, committed about the same time, are admissible for the purpose of showing the intent with which the act was done. [State v. Myers, 82 Mo. 558; State v. Bayhe, 88 Mo. 604; State v. Minton, 116 Mo. 605; State v. Balch, 136 Mo. 103]. It follows that the evidence of the theft of the Hudspeth cattle was properly admitted as tending to show that defendant took Harris’s cows with a criminal intent, and that he did not buy them from another person as claimed by him.

That the remarks of the prosecuting attorney in addressing tbe jury, were beyond the bounds of legitimate argument, and should not have been permitted, is without question, and if the case were a close one, or there was any doubt in our minds as to defendant’s guilt, we should not hesitate to reverse the judgment upon that ground alone, but as defendant’s guilt was conclusively shown, we must decline to do so.

There was no error in giving the tenth instruction on the part of the State, nor in refusing the first, second and fourth instructions asked by defendant, as those that were given fully covered every phase of the case, and were very fair to defendant.

Finding no reversible error in the record, we affirm the judgment.

Sherwood, P. J., and Gantt, J., concur.