State v. Levitt , 278 Mo. 372 ( 1919 )

WHITE, C.

The defendant was brought to trial in the Circuit Court of the City of St. Louis on an information charging- him, together with Harry Spector and Jacob Blickman, with the crime of burglary and larceny, under Section 4528, Revised Statutes 1909. He was granted a severance, was found guilty, and his punishment assessed at five years in the Penitentiary. From that judgment he has appealed to this court.

During the night of September 5, 1916, the store of Abraham Brown, located at 1534 Franklin Avenue in the City of St. Louis, was burglarized ánd a large quantity of pants, hats and other articles of clothing, aggregating $650 in value, were stolen. The next morning about 7:30 o’clock one Jacob Alpert, living at the Metropole Hotel, was called upon by the appellant, who desired to sell him a job lot of pants. Appellant produced a sample - and Alpert agreed to buy the lot for $150, but refused to, pay any money until the pants were delivered. Shortly afterwards the lot of pants was delivered to him at the Metropole Hotel and Alpert paid the appellant $95. Later in the day after appellant, with Spector and Blickman, was arrested and held at the police station, a conversation took place in which the officers were endeavoring- to gain information from the suspects, and the appellant, Levitt, said that he had bought the pants from Spector and Blickman. Spector and Blickman each then stated in the presence of Levitt, Alpert and the officers that Levitt had assisted them in entering the store and removing the property. Levitt denied this, and. reiterated his statement that he had bought the property from Spector and Blickman. This conversation was testified to by Alpert and by police officers O ’Hare and Oertli. Spector and Blickman further stated that Levitt had givep them part of the money received from Alpert. Brown identified some of the pants as those taken from his store.

The only evidence offered by defendant, Levitt, was' the testimony of his two sisters which was offered for the purpose of establishing an alibi. Each of the sisters swore that he was at home on the night of the burglary and until 7:30 the next morning.

Extra Judicial others. I. The appellant assigns error to the ruling of the court in permitting the police officers to testify to the conversation in which Spector and Bliekman stated in their presence that Levitt aided them in committing the burglary and larceny, a statement which Levitt at the time promptly denied. This evidence was admitted by the trial court on the ground that the statements were made in the presence of the defendant. An accusatory statement made by another person to or in the presence of a defendant charged with a crime is admitted when the silence of the accused under the circumstances is a tacit confession of the truth of the statement. [State v. Walker, 78 Mo. l. c. 388; 1 G-reenleaf, sec. 197-8; State v. Butler, 258 Mo. 1. c. 436.] Such incriminating evidence is sometimes received where the defendant denies only part, or qualifies his denial, or by his silence acquiesces in- what is said. Here, however, the defendant stoutly denied in toto the statements máde. In such cases the rule is general that evidence of that character is inadmissible, because it is hearsay. [16 C. J. p. 634, and cases cited in note.] The rule has been so applied in this State. Such evidence was held inadmissible because the defendant denied the statements and therefore did not acquiesce. [State v. Richardson, 194 Mo. 326, l. c. 339.] Spector and Bliekman were not witnesses in .the case and what they said about the defendant’s connection with the crime was brought before the jury against the defendant as pure hearsay with no opportunity to crpss-examine.

objection and Exception. Respondent claims that the point was not saved by proper objection and exception to the ruling 0f the court in admitting it, and therefore is not available to the defendant.

When Alpert was on the stand he was asked what statements Speetor and Blickman made, in regard to taking the pants, in the presence of the defendant. Defendant objected because the evidence was entirely, hearsay. The objection was overruled and defendant saved no exception at that time. Later, when Officer 0 ’Hare was sworn he was asked a similar question and defendant' objected to what was said between the parties. The court overruled the objection, and defendant duly excepted. 0 ’Hare then related the conversation, including statements by Speetor and Blickman to the effect that defendant was present and took part in the commission of the crime. After having made the objection and having excepted to the introduction of the conversation, it was not necessary for the defendant to repeat his objection and exception later, or after the evidence was in. The fact that the defendant, while objecting to the testimony of a prior witness regarding the same conversation, failed to save an exception to the ruling of the court in admitting it, would not prevent his taking advantage of the error in admitting the testimony of this particular witness O’Hare.

Eeputation'S II. When Anna Levitt, sister of defendant, was on the stand the prosecuting attorney in cross-examination made her say that her brother, the defendant, was in the workhouse during a certain period of the year 1917. The reputation of Levitt was not P11^ in issue by himself and therefore it was error for the prosecution to attack his reputation in that manner. [State v. Conway, 241 Mo. l. c. 279-89; State v. Wellman, 253 Mo. l. c. 315.] The Attorney-General admits the testimony was improper, but claims it was cured because the trial court instructed the jury it was not competent. The record does not show that any such instruction was given as to this particular testimony. On the contrary, the trial court ruled it proper because it was cross-examination.

III. The court refused instruction “F” asked by defendant, as follows:

I“°ooa°sf “The court instructs the jury that if you find and believe from the evidence that the defendant in this case has given reasonable explanation of his possession of the property charged to have been stolen and afterwards found in his possession, then yon should find the defendant not guilty. ’ ’

The court gave on behalf of the State the usual instruction on the possession of stolen goods and the presumption arising from such possession, concluding the instruction with these words:

“And unless such presumption is overcome to your reasonable satisfaction by evidence in the ease explaining such possession in a manner consistent with defendant’s innocence, you should find the defendant, as the evidence may show, guilty.”

The instruction asked by defendant was the converse of that proposition and in fairness to the defendant it should have been given. [State v. Rutherford, 152 Mo. l. c. 125; State v. Jackson, 126 Mo. 521.] There was testimony which enitled the defendant to this instruction. It developed in the evidence of Alpert and the officers that the defendant claimed at the time of his arrest and afterwards that he had bought the goods from Spector and Blickman and sold them to Alpert.

IY. Appellant complains of the refusal of the court to give instruction. “G” offered by him to the effect that, if defendant did not actually aid and assist in the commission of the crime, but that the criminals employed him to dispose of the stolen goods after the crime was committed and, collect the proceeds of such sale, they should find for the defendant. There was no evidence of any such employment and the instruction was properly refused.

For the errors mentioned the judgment is reversed and the cause remanded.

Boy, C., absent.

PER CURIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court.

Walker, J,, concurs; Williams, P. J., and Paris, J., concur in Pars. 1, II and IV, and the result.