Ruby Lеe Curtis has been found guilty of stealing, shoplifting a coat in excess of the value of fifty dollars from Scruggs, Van-dervoort & Barney, and sentenced to five years’ imprisonment. V.A.M.S. §§ 560.156, 560.161, Laws Mo.1955, p. 507. Ruby did not testify; her plea to the charge, however, was not guilty and two witnesses gave evidence from which Ruby hoped, no doubt, the jury would draw the inferenсe that she had not and could not have stolen the coat, at least on the date charged, January 25, 1958. Edna Simpson was co-hostess at a tea or social at the Hopewell Baptist Church on Sunday, January 19, and she said that Ruby as a guest on that occasion wore a red coat, “appears to be thе same coat” as state’s exhibit one. And Vera Steele, a beauty operator who always admired Ruby’s clothes, definitely remembered that when she came to the beauty parlor on January 17 she was wearing a red coat “similar” to the one the state claims she stole on January 25. Nevertheless, upon this her appeal, Ruby does not challenge the sufficiency and cogent, probative force of the evidence establishing her guilt. She does claim, however, that she was deprived of a fair trial and for that reason is entitled to a new trial.
It is her contention that her right to a fair trial was improperly and unjustly invaded in these particular respects: (1) that the trial court erroneously permitted Mrs. Heinrichs, a store detective, and Mrs. Paterson, an assistant buyer, to state that they had known her or that she had been pointed out to them on occasions prior to the afternoon of January 25, and she particularly complains of the court’s permitting Mrs. Heinrichs to say that she “trailed” her and once that the defendant “looked around to see who was trailing her”; (2) that the court erroneously permitted a store detective, Mr. Boje, the store’s “superintendent of protection,” to give his opinion of the value of the coat; and (3) that she is entitled to a nеw trial because the trial judge, by a homely illustration in ruling on an objection, indicated to the jury his approval of the witness’ statement as to the ownership of the coat, a material issue in her trial, of course.
Mrs. Paterson was Scruggs’ assistant buyer, attached to the “costume room” and it was she who received and invoiced the coat into the costume room stock on behalf of her employer. The coat is a “peony red” woolen winter garment, the only one of its kind, designed and styled by Nettie Rosenstein. The invoice was in the box in which Mrs. Paterson received the coat in the costume room in September and she receipted the invoice. Scruggs paid $195 for the coat and its original retail price was $335. The coat did not sell as expected and its price was finally marked down to $175 and the coat was placed on the “reduced rack.” When Mrs. Paterson went to lunch on January 25, the coat was on the rack in the costume room. Whеn she returned from lunch the coat was gone from the rack and it had not been sold. Mrs. Heinrichs saw Ruby take the coat from the rack, put it on and walk out of
In addition to other identifying matters there was a Nettie Rosenstein label in 'the coat collar and there had been a Scruggs blue price tag (blue tags always being used for coats) attached to the inside of the collar but the tag had been removed leaving a piece of the string only attached to the collar. Mrs. PIcinrichs had previously testified to the piece of string and there is now no objection to her having done so. Subsequently, after Mrs. Paterson had already identified the coat and its value, she was asked the question, “Any other identifying features?” She answered, “Yes. Nettie Rosenstein label, and here is a little piece of string that holds our tag.” Defense counsel interposed and said, “I object to that; no foundation laid for that answer, and ask the jury be instructed to disregard it, and the answer bе stricken.” The court said, “I overrule it. It is like a man who owns cattle if he has his label in the ear— it is for her to say if that is the one type of label. That is all it is.” Upon counsel’s insistence that the court’s statement “about cows and labels * * * corroborates this witness’s previous testimony” the court said, “It is all stricken at the request of Mr. Bruntrager. That is as far as the ruling will go,” and the court refused to instruct the jury to disregard his remark. As with its value, the coat had been otherwise identified, almost conclusively, and the piece of string was not an all important issue or the telling piece of evidence a piece of string has been in other circumstances. The court’s homely illustration, as applied to range cattle at least, is supported by the highest authority: “When an animal is found in B’s possession, and the animal bears a brand or other mark, and one of the issues is whether A is the owner of the animal, it is a natural and immediate inference that the animal belongs to the person whose brand it bеars, and, if that brand is A’s, then to A.” 1 Wigmore, Evidence, § 150, p. 589; V.A.M.S. §§ 268.010-268.110. But in this jurisdiction, “If any dispute shall arise about the question of whose any particular mark or brand may be, it shall be decided by the record of the clerk” (V.A. M.S. § 268.020); “an interesting specimen of primitive legislative modes of expression,” adds Professor Wigmore. 1 Wig-more, Evidence, p. 592. So, while the illustration may be imperfect as an analogy (the tag having been removed from the coat), the judge was in fact illustrating his reason for his ruling that Mrs. Paterson could testify to the identifying tag and string, and the court’s statement was not necessarily an approving comment or summing up as to the force and effect of the evidence. State v. Moore, Mo.,
Ruby’s contention that there was an infringement of her right to a fair trial in permitting Mrs. I-Ieinrichs to say that she had “trailed” her when she came in the store and in permitting Mrs. Paterson and Mrs. Heinrichs to say that they had seen and known Ruby prior to the date of the theft arose in these circumstances: As stated, Mrs. Paterson last saw thе coat when she went to lunch, she next saw it after she returned from lunch in the office adjoining the costume room where the store detectives had detained Ruby. In testify
Aside from the specific inadequacy and inapplicability of the “irrelevant” and “immaterial” objection (McCormick, Evidence, §§ 151-152, pp. 314-315), the witnesses did not in point of fact testify to or refer to, either directly or indirectly, any other crime Ruby may have committed (Compare: State v. Farmer, Mo.,
The other claim that she was deprived of a fair trial has to do with Mrs. Heinrichs saying that she “trailed” Ruby when she came in the store and once that Ruby “looked around to see who was trailing her.” It is again said that this testimony was irrelevant and immaterial to any issue in the case and constituted an attack upon Ruby’s character, a matter not in issue since Ruby did not testify. It is also said that the statements were not responsive to the questions asked and that they were mere conclusions, not based on any facts within the knowledge of the witness and invaded the province of the jury. It is not proper, of course, for a witness to testify to her conclusions but a testimoniаl conclusion particularly infringes the right to a fair trial when it has the force or effect of answering the ultimate issue the jury is to determine; as in a rape case, “from what you heard her say there, if you understood from what she said and her actions there, she had been outraged by this man Wertz,” the witness concluded “from her genеral appearance I would be inclined to think she had been mistreated.” State v. Wertz,
The circumstances were these: Mrs. Heinrichs first saw Ruby in the store about elеven o’clock in the morning. She next saw Ruby entering the costume room on the third floor about one o’clock. Unknown to Ruby, of course, Mrs. Heinrichs saw her remove the coat from the rack, saw her put it on and glance in a three-way mirror, saw her walk out of the costume room and ride down the escalator to the shoe department on the second floor. Mrs. Heinrichs, of course, followed Ruby and stood back out of sight as Ruby looked at shoes. After detailing these circumstances in general, Mrs. Heinrichs was asked this question: “How long had you followed Ruby Lee Curtis that day, the 25th of January, this year?” Defense counsel objected, “That is too vaguе and too indefinite.” The court overruled that objection and the witness answered, “Well, it was a short time. I had trailed her earlier in the morning; when she came in the second time, naturally, I trailed her again.” Defense counsel instead of making specific objection with reasons (State v. Tyler, Mo.,
Other matters “upon the record before them” (V.A.M.S. § 547.270) have been examined and there being no manifest infringement of the appellant’s right to a fair trial the judgment is affirmed.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.