State v. Thomas , 296 Mo. 459 ( 1922 )

An information was filed in the Circuit Court of Audrain County, Missouri, on June 22, 1921, charging defendant with the crime of larceny from a dwelling house on March 21, 1921, in said county. He was charged with stealing from the residence of Will Rodgers personal property of the value of $28.50. He was found guilty by a jury, as charged in the information, his punishment fixed at imprisonment in the penitentiary for a term of three years, and judgment and sentence rendered accordingly.

The State's evidence tends to show the following facts: On March 21, 1921, one Will Rodgers lived, with his wife, Josephine Rodgers, in a seven-room frame house, at 604 West Jackson Street, in the city of Mexico, Missouri; that defendant and two other roomers lived with Rodgers and wife; that on said March 21, 1921, about noon, while said Rodgers and wife were at lunch, defendant came in, and announced that he was ill. He was invited to dine with them by Josephine, and partook of a light lunch. He said the truck he was driving had broken down, that he was not well, and would go up to his room and lie down, which he did. He and Josephine were the only occupants of the house that afternoon, as far as the record discloses. She decided to go to the picture show, and told defendant to lock up the house and put the key under the rug on the front porch, in the event he went out. Josephine, among other things, testified as follows: "Q. So when you left you told him [defendant] where the key was and you yourself left Thomas in charge of the house and everything that was in the house and told him to lock up before you got back? A. Yes, sir." Defendant had been rooming there nearly three weeks. Josephine returned home about five o'clock that afternoon, found the back door of her home open and defendant gone. On the following day, Will Rogers found that a pair of his tan shoes, a pair of black shoes and his coat had been taken, all of the value of $28.50.

Defendant did not return, and was afterwards apprehended at Springfield, Missouri, and brought back to Mexico. He stated in the presence of the prosecuting-attorney, and other officials, that he had been taking dope, and when he awoke took those things. He got off of a Chicago Alton train and left the same at Slater, realized what he had done, and started back to Mexico, when he saw a man in the railroad yards at Slater, who he thought was a detective, and ran. While running, he lost some of the articles from the grip, went from there to Kansas City and on to Springfield. He sent for Will Rodgers, and told him he wanted to pay the value of said goods. Defendant was then in the calaboose. The value of the goods taken was less than $30, and the court so instructed the jury.

At the close of the State's case, the court asked defendant's counsel if he desired to make a statement. No response was made to said inquiry, but said counsel stepped up to the bench, and handed the court a demurrer to the evidence, which was overruled. The court thereupon announced that defendant offered no evidence, and the cause was closed. The trial court stated that the above remarks were made in order that the court reporter could make a record of the case, and for no other purpose.

After appellant's motions for new trial and in arrest of judgment were overruled, the cause was duly appealed to this court.

I. It is contended by appellant that the trial court committed reversible error in making certain remarks in the presence of the jury, to the prejudice of defendant. It appears from the record that, at the close of the State's evidence, counsel for appellantComment on interposed a demurrer thereto, which wasDefendant's overruled by the court. The defendantFailure to Testify. elected to, and did, stand upon said demurrer. Thereupon the judge announced, for the benefit of the court stenographer in making up his record, that defendant offered no evidence and the case was closed. The trial judge disclaimed any intention of commenting on the evidence, or prejudicing the jury against appellant. On the contrary, he announced from the bench that the above remarks were made in perfecting his record.

We are cited in appellant's brief to State v. Sharp,233 Mo. 294-5, as authority in support of the above contention. KENNISH, J., in disposing of the case, said: "It is earnestly insisted by appellant that during the course of the trial remarks were made by the court which were so highly prejudicial to the defendant as to constitute reversible error and entitle him to a new trial. A number of these remarks of which complaint is made are set out in appellant's brief, and while we do not consider them of such serious import as to amount to reversible error, some of them are subject to criticism. What the court said in the hearing of the jury complimentary of the prosecuting attorney, and at another time in criticism of the attorney for the defendant, may or may not have been deserved, but as it cannot be said that a manifestation by the court of its good opinion of the attorney and of hostility to another is without influence on the minds of the jury, and as the defendant was on trial for his life, the remarks should have been avoided."

No such remarks were made in the case at bar, as are quoted above. And notwithstanding Judge KENNISH'S criticism, the case was affirmed.

In State v. Lee, 225 S.W. l.c. 929-30, counsel for respondent in his opening statement to the jury, at the conclusion of same, said: "This is what the State will prove, and then it devolves upon the defendant to make any explanation which she sees fit."

Counsel for the State immediately withdrew the above remarks. The court was thereupon requested by counsel for defendant to admonish counsel for the State, and refused to do so. Defendant demurred to the State's evidence, and offered no testimony in the above case. Complaint was made in this court, as to the above remarks of counsel for the State, and on page 930 we said:

"It is insisted that the above statements were made in violation of Section 5243, Revised Statutes 1909, which prohibits the State from commenting on the defendant's failure to testify in the case. Counsel for the State withdrew the language complained of before the court ruled thereon, and it does not appear that any other similar statement was made during the progress of the case. But, even if the statement aforesaid had not been withdrawn, and defendant's objection thereto had been overruled, it would not have constituted reversible error in this case. The evidence heretofore set out is clear and convincing as to defendant's guilt. Respondent's counsel made good his statement as to the proof of defendant's guilt which the State would furnish during the progress of the trial. He correctly stated the law to the effect that a conviction should follow under such circumstances if no evidence was introduced in behalf of defendant."

Without pursuing this inquiry further, we are of the opinion that the above remarks of the trial court furnish no legal grounds for the reversal of this case. They could not be construed as a comment on defendant's failure to testify in the case.

II. Appellant contends that his demurrer should have been sustained, on the theory that there was no substantial evidence showing the shoes or coat in controversy were ever in the Rodgers's dwelling house. In the absence of evidence on the subject, it wouldDemurrer to generally be presumed that a man's wearing apparel,Evidence. such as shoes and coat, were kept in his dwelling house, but in this case it is not necessary to resort to presumptions, as there is direct evidence on the subject. It is undisputed that defendant was in the Rodgers's dwelling house when Josephine left for the picture show. He was gone when she returned, and the back door of said house was open. The defendant indulged in flight. Was apprehended as a fugitive from justice, returned to Mexico and, while in the calaboose, admitted, in the presence of Will Rodgers, that he had taken said shoes and coat from the dwelling house of the latter. Will Rodgers testified on this subject as follows: "Q. Where did he say these clothes were when he took them? . . . A. In my house." He further testified that they were taken from his house in the city of Mexico, County of Audrain and State of Missouri. Defendant told Sheriff Blum that he got two pairs of shoes and a coat out of Will Rodger's room at Mexico, Audrain County, Missouri.

The value of the goods stolen was placed at $28.50. There was substantial evidence offered by the State as to defendant's guilt and, hence, appellant's demurrer thereto was properly overruled. [State v. English, 228 S.W. (Mo.) 746.]

III. The trial court is charged with error in giving instruction numbered one which reads as follows:

"The court instructs the jury that if they find and believe from the evidence beyond a reasonable doubt that the defendant, at the County of Audrain, and State of Missouri, on or about the 21st day of March, 1921, and within three years priorCustody of to the filing of the information in this case, didHouse. unlawfully and feloniously steal, take and carry away from the dwelling house of Will Rodgers the articles described in the information, or any of them, and that said articles were the property of said Will Rodgers and in his possession in said dwelling house, and that defendant took said articles with the intent to permanently deprive the said owner of his said property and to convert the same to his own use, then they will find the defendant guilty and assess his punishment at imprisonment in the State Penitentiary not exceeding a term of seven years, or by imprisonment in the county jail not exceeding a term of one year."

The above instruction is based on Sections 3315 and 3316, Revised Statutes 1919, and was approved as to both form and substance in the recent case of State v. English, 228 S.W. (Mo.) l.c. 749-50.

Counsel for appellant insists that when Josephine left the house, she turned over to defendant the care and custody of same, and its contents. The evidence does not sustain this contention. She testified as follows: "I told him [defendant] I was going to meeting that afternoon, just to lock up when he got ready to leave." She further testified that when leaving for the picture show, she told defendant to leave the key under the rug on the porch, if he went out. Thereupon the following question was propounded to Josephine by counsel for defendant: "Q. So when you left you told him where the key was and you yourself left Thomas in charge of the house and everything that was in the house and told him to lock up before you got back? A. Yes, sir."

It is manifest from all the evidence in the case, that Josephine simply left defendant in his room, and directed him to leave the key under the rug on the porch if he left the house before her return. The above question propounded to Mrs. Rodgers is both confusing and misleading. She was simply telling defendant where to put the key in case he left the house before her return. It is not claimed that she pointed out to defendant the shoes and coat stolen by him. All of the property in that house, outside of defendant's room, was under the custody of the Rodgers dwelling house. Even if it be conceded that Josephine delegated to defendant the control of the house and its contents while she was gone, it left him in no better position than he would have occupied had he stolen the same goods while Josephine was in charge of the house. If defendant stole the property in controversy from the dwelling house of Will Rodgers, as charged in the information, he was guilty of grand larceny, regardless of what Josephine Rodgers said to him about taking charge of said dwelling and its contents. [Secs. 3315 and 3316, R.S. 1919.]

We think the authorities cited by counsel for appellant in support of his contention supra, have no application to the facts of this case, but if either of the authorities cited is in conflict with the conclusion heretofore announced it should not be followed.

IV. It is insisted by defendant that instruction numbered one is erroneous because it omitted the element of felonious intent. The case of State v. Gochenour, 225 S.W. l.c. 691, relied on in support of said contention, was reversed andFelonious Intent. remanded on the sole ground that the information was defective in above particular. The conclusion reached as to the invalidity of theinformation in the Gochenour Case was subsequently overruled. [State v. Akers, 242 S.W. (Mo.) 660-1; State v. Huffman, 238 S.W. (Mo.) l.c. 435; State v. Hodges, 234 S.W. (Mo.) l.c. 790; State v. Jones, 225 S.W. (Mo.) l.c. 899.]

V. Appellant challenges the correctness of instruction numbered two, which reads as follows:

"The court instructs the jury that the defendant, in law, is presumed to be innocent, and that it devolves upon the State to prove, by evidence, to the satisfaction of the jury, beyond a reasonable doubt, that the defendant committed the crime as charged in the informationReasonable and explained in these instructions, and if, upon aDoubt, Etc. view of the whole case, you have a reasonable doubt of the defendant's guilt, you will give him the benefit thereof and acquit him. But a reasonable doubt to authorize an acquittal on that ground, must be a substantial doubt of defendant's guilt, formed upon a careful consideration of all the facts and circumstances proven in the case, and not a mere possibility of defendant's innocence."

The instruction criticised in State v. Blue, 136 Mo. 41, 44, is entirely different from the one given in this case, as indicated in State v. Duncan, 142 Mo. l.c. 460-1, where the instruction in the case before us was sustained. The instruction, as given, is clearly correct, and is sustained in State v. Temple, 194 Mo. l.c. 249, and cases there cited. The above contention is without merit and overruled.

VI. Other questions are discussed in appellant's brief, but after reading the record carefully the second time we have reached the conclusion that they are devoid ofConclusion. merit. We are of the opinion that the information herein is good; that the instructions given were correct; that no error was committed in refusing the additional instructions asked by appellant; that defendant received a fair and impartial trial before the jury and was properly convicted.

The judgment below is accordingly affirmed. White andReeves, CC., concur.