254 Mo. 437 | Mo. | 1914
“An accomplice is a person who knowingly, voluntarily and with common intent with the principal offender unites in the commission of the crime. . . . The principal and the accomplice must co-operate in the commission of the same crime.” [1 Wharton’s
In the case of State v. Kuhlman, 152 Mo. 100, l c. 103, the court said:
“One hearing the relation of an accomplice as defined by Dr. Wharton and approved by this court is a principal in the first degree and is liable to be charged and punished in the same manner as the principal.”
In that ease it was held that the thief was not an accomplice of the person who knowingly received the stolen goods. To the same effect is State v. Shapiro, 216 Mo. 359, l. c. 371. Applying the above test, witness Miller was not an accomplice of the defendant.
With reference to witness Seltzer, appellant, in his brief, says: “Seltzer, according to the testimony produced by the defendant was the person who received the goods and at the request of the defendant clandestinely returned them. . . . Miller says he saw Seltzer point the thieves where to take the goods.” But this evidence is not sufficient to show that Seltzer was an accomplice of Cohen’s. It only tends to prove that Seltzer and not Cohen received the stolen goods and wholly fails to show that Seltzer and Cohen “cooperated in committing the crime,” as the above announced rule requires.
Whatever may be the rule in other jurisdictions, controlled or influenced by statutes, in many instances unlike the Missouri statute, it is sufficient to say, concerning the above point, that the rule has become well established in this State that a fraudulent intent is not
Appellant’s brief states: “This instruction ignored the intent of the defendant entirely, and if he received the goods intending to restoré them to the rightful owner as he testified, he was, under said instruction, nevertheless, guilty.” Replying to that contention, let it be said that we do not here undertake to say that, where the evidence tends to show .that the possession was taken in good faith for the purpose of restoring same to the rightful owner, the defendant, if he so requested, would not be entitled to have the jury, in effect, instructed that if such was his purpose at the time he received the property he should be acquitted. But that question must be left for determination when the facts justify the raising of such an issue. No such defense is interposed here. The evidence on the part of the defendant denies that he ever had possession of the goods in question for any purpose.
Appellant is not in a position to complain of the above evidence. The testimony concerning the five hundred transactions was first brought out by appellant’s cross-examination of the State’s witness Miller as shown by the following excerpts from the testimony.
‘Q. Will you tell me how many times you have' committed larceny? how many times you have stolen? A. With Lineman?
“Q. Yes, with Lineman first, how many times have you and Lineman stolen anything? A. I never stole, Lineman always did-the stealing.
“Q. Lineman did the stealing and you did the hauling? A. Yes, sir.
“Q. How many times did Lineman do the stealing and you do the hauling? A. About 500 times in three years.
“Q. You have hauled stolen goods 500 times with Lineman in three years? A. Yes, sir.
“Q. You knew they were stolen? A. Yes, sir.
“Q. And that was your occupation? A. No, sir.
“Q. You didn’t do much if you hauled 500 lots of stolen goods with one man; did you have another thief? A. Lineman and Meyers.
££Q. Five hundred for both of them? A. For both, 250 for each.
£ £ Q. You have been at the business five years ? A. Three years.
££Q. You think you have pulled off, assisted in pulling off 500 jobs in three years ? A. These men did that in their line of business.
££Q. Easy that amount? A. Yes, sir.
“Q. You knew they were going to steal these goods and you were renting your wagon to them so they might get away with the stolen goods? A. Yes, sir.
“Q. You were doing that for the sum of three dollars ? • A. I would lend them my wagon for whatever they would pay me.
££Q. They were the paymasters ? A. Mr. Cohen was the paymaster.
££Q. According to your testimony they had been putting shoes and merchandise into the place for three years, how did he come to tell them to do it that day when they had been doing it for three years ? A. He had been receiving property there in the back and he says, If I am not here leave it in the back room.’
“Q. Hadn’t they always been doing it if he was not there? A. It was a password to say that.
“Q. You were hauling goods up there? A. Yes, sir.
££Q. How many of the five hundred loads did you haul up there; I want it all, I don’t want to have to examine you again? A. I could not say.”
“What became of the goods that were stolen during those five hundred different occasions that you have mentioned in answer to Mr. Cullen’s question? A. Mr. Cohen would buy them and ship them away.”
Appellant’s counsel interposed an objection which the court overruled on the ground that the cross-examination had gone into the matter. This action of the trial court did not constitute error. The answer made to the above question asked on redirect examination disclosed nothing different from the inference which the jury could easily have drawn from the facts brought out by said cross-examination.
The evidence to which reference is here made is the evidence tending to show that defendant had received from the same man, Lineman, other stolen property, to-wit, whisky, dry goods,- shoes and cigars under similar conditions, paying a low price for same. Evidence of this character is admissible upon a charge of this kind. [State v. Smith, 250 Mo. 350, l. c. 368, and cases therein cited.]
Neither do we think it necessary that the jury should have been required to find that at the time the defendant received the goods on each of the other occasions he knew the same had been stolen. This
While it may be said that evidence of a single transaction of defendant’s having received stolen goods would not be evidence that he received those particular goods knowing them to have been stolen, yet, when the instances, similar in character as to person from whom received, low price paid, etc., are multiplied, the combined testimony would no doubt be some evidence (at least circumstances from which it might be inferred) that the person received each delivery with guilty knowledge, and more especially so with reference to the later instances in a series of receiving stolen property. A person might innocently receive stolen property on one occasion, .yet such instances, so similar in character, could not be multiplied to any great extent and the receiver’s mind be left free from all trace of suspicion which would most likely develop into a matured guilty knowledge. Therefore, such evidence is admissible and possesses probative value in that it throws reliable light upon the kind of knowledge the defendant may have had in receiving the goods in the. instant case, the weight of such evidence to be measured by the jury after an instruction given limiting the consideration thereof to the purpose of arriving at the guilty knowledge or scienter, if any, as was done in the present case. In discussing the admissibility of evidence of similar transactions without fur
“The mere fact of possession would seem to be sufficient as probably leading to a warning through the reclamation of the goods; and it is not. necessary additionally to show that the receipt was accompanied by circumstances calculated in themselves to excite suspicion, or that the possession was so concealed as to show guilty knowledge. The latter features, however, are present in some of the precedents, though they do not seem to be treated as a requirement for every instance. There are therefore three possible attitudes to take as to this element: The mere fact of possession suffices; or the possession must havé been obtained under suspicious circumstances; or neither of these suffices, and former hnowing- possession is alone sufficient. The first view (i. e., mere fact of possession suffices) is that represented in most courts in this country; the second is sometimes hinted at; the third is represented by R. v. Oddy in England. . . . From the point of view, then, of the knowledge principle, it is necessary and sufficient to show (a) former receipt and possession (and, perhaps, under suspicious circumstances), (b) of goods similar as to the person bringing them, or as to their kind or otherwise.” [1 Wigmore on Evidence, sec. 324.]
It therefore follows that the court did not err in refusing to instruct on the point mentioned.
VI. Other .assignments of error made were; that the conduct of the prosecuting attorney was improper; that the cross-examination of defendant was broader than the examination in chief and that certain evidence was admitted in the State’s rebuttal that should have been admitted in chief, and that certain evidence was improperly admitted. In support .of these various other assignments of error, appellant has copied
Tbe judgment is affirmed.
Tbe foregoing opinion of Williams, C., is adopted as tbe opinion of tbe court. -