The appellant was convicted of grand larceny in the circuit court of Jefferson county and his punishment assessed at two years imprisonment in the penitentiary. There were 21 assignments of error in his motion for new trial in the circuit court. Some of these are too indefinite to meet the requirements of the new trial statute, Sec. 4125.* In his brief he makes some assignments of error which were not presented in the motion. We shall presently take up in order all the assignments on appeal that are open to review. But first, we state the evidence.
The prosecuting witness, J.W. Harbour, operated a retail lumber yard at Herculaneum in Jefferson county. On or about October 18, 1941, the office was burglarized by breaking the glass in a side door and turning the lock inside, A considerable amount of merchandise and office equipment was stolen, the latter including a second-hand out-of-order Burroughs adding machine which he had recently purchased for $10, and a second-hand Woodstock typewriter bought a few weeks before for $15. On February 20, 1942, the appellant's premises at 2425 north Vandeventer Avenue in the City of St. Louis were searched and the adding machine was found there. Appellant was arrested that day. About the same time the officers located the typewriter in the home of Miss Wilma Lawson, 4046 Manchester Avenue, St. Louis. She was a life-long acquaintance of appellant and had bought the typewriter from him for $20 a few days before Christmas. The information filed by the prosecuting attorney charged appellant with both burglary and larceny, but the latter charge covered only the adding machine and typewriter — not the stolen merchandise or other office equipment, which never was found so far as this record shows.
On his premises at the Vandeventer Avenue address the appellant and his wife conducted a confectionery, soft drink, lunch and tobacco store on the first floor and resided on the second floor. There was an old woodshed behind the store building in which officer O'Connor found the adding machine. There is no evidence as to how the police came to search the premises, or how or why they had previously connected him with the burglary and larceny. There was no direct evidence that he had ever been at the scene of the crime. Efforts were made to discover fingerprints about the lumber yard office [452] but none could be found that were legible, though some prints of rubber *Page 576 heels were noticed but these were not shown to have been connected with the appellant. The foregoing constituted the State's whole showing on its case in chief. The appellant asked an instruction in the nature of a demurrer to the evidence which the court refused to give.
The defense presented as a witness a sixteen year old boy named Herschel Colyer. He had been a clerk in the appellant's store for about a year, including the period between December, 1941 and February, 1942. His testimony was that the week before Christmas, 1941, a "guy" (whom he later described) came in bringing the typewriter and adding machine, one at a time, and his employer went to the cash register and gave the man some bills (currency). He identified both machines (then before the jury) and said they were left in the "living room." A couple of days later the typewriter was gone. But the adding machine remained two or three weeks — on cross-examination he estimated the time as a "couple of months." The witness said the appellant tried to fix the machine but could not make it work. He thought it was then sold; but later heard "them" (meaning the appellant and his wife) say "the law took it."
Appellant's wife testified they had been operating the confectionery for two years. She remembered the typewriter and adding machine were brought to the store just before Christmas, although she wasn't there at the time. She and her husband each worked there eight hours each day, and they usually closed up about 11 P.M. or midnight. In the middle of October, 1941, her husband had the night shift. She could not recall that he had been away from home at night during that month. He rarely left except on errands or when he went to "the tavern" to see somebody. When he was away she looked after the business. When the typewriter and adding machine were brought to the store they were placed on a table in the middle of the kitchen behind the salesroom where they were in plain sight. The typewriter was there more than a week; the adding machine for a longer time, until she asked her husband to get it out of the way and he put it in the shed back of the building. About two weeks later the police took it.
On rebuttal police officer O'Connor said he had seen the appellant numerous times at Lang's Tavern, 2400 north Vandeventer (appellant's store was at 2425) and at another place on Tower Grove Avenue called Shaw's Tavern. Some of these occasions were in October, 1941. The officer was on the evening watch that month. He didn't remember ever seeing the 16 year old clerk Colyer at the tavern, but admitted he had been there only a few times before making the arrest in February, 1942. The appellant did not testify, and ineffectually renewed his demurrer to the evidence at the close of the whole case. The jury found in favor of appellant on the burglary charge, but convicted him on the larceny charge. *Page 577
[1] Appellant's first assignment is that the trial court erred in overruling his demurrers to the evidence at the close of the State's case and the whole case, grounded on the contention that there was no substantial evidence to support a verdict of guilty. In this connection it is to be remembered that whether or not the first demurrer should have been sustained, yet, since appellant did not stand on it but presented evidence in his own behalf, the trial court was bound to take the latter evidence into consideration insofar as it helped the State's case, in ruling on the second demurrer at the close of the whole case. State v. Barr,
Appellant's specific contentions on this assignment are that: (1) there was no direct proof of his guilt, or even that he had been in Jefferson county where the larceny was committed, before his arrest; (2) the mere finding of the adding machine in the shed on appellant's premises "five months" after it had been stolen, was insufficient to support a substantial inference that he was the thief. On this latter contention, appellant correctly says that under State v. Swarens,
[2] On the first of these contentions, concerning the recency of his possession, appellant is mistaken in saying the proof showed he got the adding machine five months before the larceny. The date of the larceny was about October 18, 1941; and the date of his arrest, when the machine was found in his possession, was February 20, 1942, which was only four [453] months and two days later. But it must not be forgotten that appellant's own evidence, through the testimony of his wife and clerk, Colyer, was that he had had both the adding machine and typewriter since the week before Christmas, which would be just about two months after they were stolen.
Appellant cites State v. Duncan,
But we are unable to hold as a matter of law that appellant's possession of the stolen adding machine and typewriter two months after the larceny was too remote to permit of the application of the rule stated in the third preceding paragraph. In a very recent decision, State v. Tomlinson, No. 38706,
In the texts just cited it is stated that the question of recency, in a legal sense, will depend somewhat on whether the property ordinarily would be salable or pass readily from hand to hand. If not, the inculpating period of time will be extended. Another test, it seems to us, is whether the property is such as the accused would naturally want and come by honestly. Here the appellant was found in possession of the adding machine in a woodshed behind his store. He had sold the typewriter to an old acquaintance a short time after he bought it (according to the testimony of his two witnesses) and about two months after both machines had been stolen from the owner. There is no evidence that appellant himself had any use for the machines except to dispose of them for profit. He was not in that business, but the confectionery business. Surely that was one of the circumstances calling for explanation. We hold there was no failure of proof on the part of the State as regards this issue of recency.
[3] On the second contention — that appellant's possession of the adding machine and typewriter was not exclusive. He refers us to two Missouri decisions, cited in the margin.1 In the Belcher case the merchandise was found in the home of the defendant's mother and there was no evidence indicating he had any possession of it other than such as was shared by the family in common. In the Drew case *Page 579 a piece of stolen dress goods was found in the defendant's home in a locked trunk, the key to which was produced by his daughter and wife, the latter unlocking the trunk when the search warrant was served. There was no evidence that the defendant knew they had the cloth. The decision held this proof insufficient, declaring that to support an incriminating presumption the possession of the defendant must be more [454] than constructive; it must be an actual, conscious possession. Both these decisions are authority against appellant instead of for him. His own evidence is that he was in exclusive control of both machines; that he sold the typewriter; and that he tried to fix the adding machine, finally putting it in the woodshed at his wife's request to get it out of her way in the kitchen. Certainly he was in actual, conscious possession of both.
[4] On the third contention — with reference to the requirement that before an incriminating inference can be drawn, the defendant's possession must be unexplained. Appellant insists his possession was explained by his wife and the young clerk, Colyer, both of whom testified he bought the machines. In other words, it seems to be appellant's theory that if he presents an explanation then the jury cannot draw an unfavorable inference from his possession, whether they believe his explanation or not. But this is not the law. If it were, the rule of evidence under discussion would be useless. In almost every such case some explanation is offered by the accused. The doctrine in this State and elsewhere is that the credibility of the explanation is a question of fact for the jury; and if the jury disbelieves it the case stands with his possession unexplained.2
Indeed his position is worsened, for if the facts are consistent with the defendant's innocence, neither he nor his witnesses need lie about them. State v. Enochs,
There were reasons why the jury might have thought the appellant could have given a fuller explanation than was made — and this without testifying, himself — if the facts stated were true. For instance the clerk, Colyer, testified as an eyewitness to appellant's purchase of the machines and described the man who sold them. But absolutely no effort was made by the defense, so far as the record shows, to locate and produce the vendor as a witness or to account for his absence. And there was no effort to trace any intermediate ownership of the *Page 580 machines by their serial numbers, although the evidence shows the adding machine, at least, had such a number.
[5] Another more general contention made by appellant is that where a large amount of property has been recently stolen and only a small part thereof is found in the possession of the accused, the rule of evidence permitting the inference that he was the thief does not apply. In this case the property stolen consisted not only of the adding machine and typewriter, but also of $100 worth of carpenters tools, 10 dozen paint brushes, 8 or 10 dozen files, 10 or 12 dozen rulers, a dozen flash lights, and a 16 inch electric fan, none of which were ever found. Appellant argues this separable property might have found its way into the possession of a hundred or more persons; and that under the doctrine relied on by the State conflicting inferences would be allowable that each of these persons had stolen all of it. Our answer is, first, that appellant is not confronted with any such dilemma. He is not charged with stealing any property except that traced to his possession; nor has it been shown that any of the other property was found in the possession of anyone else. But if such a question were in the case it need only be pointed out that for a long time in this State the general rule has been contrary to appellant's contention,3 as regards the property he is charged with stealing.
[6] What has been said disposes of appellant's demurrers to the evidence, except as to what might be called two collateral contentions. One is that under the evidence the appellant, if guilty at all, was guilty of both the burglary and the larceny;[455] and since the jury acquitted him of the burglary, his conviction of larceny cannot stand. On this point appellant cites State v. Bates,
[7] The other contention is that the State's evidence was so weak it must be concluded the jury convicted him of the larceny because he did not take the stand and explain how he got the stolen machines. This, says appellant, was a violation of his rights under Sec. 23, Art. II of the State Constitution and Sec. 4082 of our statutes, which latter provides such failure to testify "shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury." The question presented is whether this constitutional and statutory right is violated by enforcing the unexplained-recent-possession rule of evidence, when the defendant has not testified and the State's evidence is weak.
The rule is founded on reason, and that actually cannot be excluded from the human mind. Our cases have followed a vacillating course in deciding whether the jury should be instructed about their duty under the statute to ignore the defendant's failure to testify. The conclusion reached seems to be that the statute forbids the giving of such an instruction, even on the defendant's request, because the instruction, itself, would amount to a comment on his failure to testify; or at least that is not error to refuse the instruction.5 In consequence, our established practice is rigidly to refrain throughout the trial from any reference to the defendant's failure to take the witness stand. The jury simply are not informed about the requirements of the Constitution and statute. Usually the defendant prefers adherence to that course. It was followed in this case. And since we may start with the basic premise that the evidence was sufficient to take the case to the jury without the appellant's testimony, we think he cannot complain because he thinks the jury may or must have been influenced by his failure to take the stand. If that were the law there would be no way to submit a close case when the defendant had not testified.
[8] Another assignment of error is that the court failed to instruct on petit larceny. The State's instruction No. 3 told the jury they might convict the defendant of both burglary and larceny, or either. They did convict him of grand larceny only. The information duly charged the stolen adding machine and typewriter were of the value of $100. But there was no instruction informing the jury they could not convict him of grand larceny alone unless they found the value of the stolen property was $30 or more — as required by Sec. 4456. The evidence on that question was close at best. The prosecuting witness testified he paid $10 for the adding machine and $15 for the typewriter when he bought them. Miss Lawson said she paid appellant $20 for the typewriter. Obviously, the jury might well have found the value *Page 582 of both machines was less than $30. Under Sec. 4070(4) it was, therefore, patent error to omit the instruction on that part of the law of the case. State v. Enochs, supra, 339 Mo. l.c. 958(II), 98 S.W.2d l.c. 987(II).
[9] But that error was not assigned in the motion for new trial. Appellant says this was unnecessary, citing State v. Conway,
[10] Another assignment attacks the State's instruction No 1, which submitted the question whether appellant "either acting alone or in company with another" broke into and entered the lumber yard office. The challenge is that the instruction runs on the theory of conspiracy or joint action, when there is no evidence whatever that appellant was acting with, by or through another. We need not inquire whether this was error under such cases as State v. Simpson (Mo., Div. 2), 237 S.W. 748, 749(7). For the instruction was on the burglary only, and appellant was acquitted of that charge. The same is true of another complaint made by appellant with respect to the same instruction, namely, that it did not correctly define what constitutes "breaking" into a building.
[11] Another assignment complains of the giving for the State of Instruction No. 5, which read as follows: "The Court instructs the jury that the possession of stolen goods creates no presumption of guilt of the theft and in this case you are instructed that the possession by Roy Elbert Denison, if you so find, of a part of the goods stolen in the burglary of the Harbour Lumber Yard creates no presumption that he was present at, or participated in, the burglary and larceny charged. But, his possession of part of the stolen goods, if you so find, is a circumstance which, if not explained, you may take into consideration, *Page 583 together with other circumstances, in arriving at his guilt or innocence of the crime charged."
The errors charged are that the instruction was bad because: (1) it failed to require the appellant's possession to berecent; (2) it assumed his possession was recent; (3) and it was a comment on the evidence. We think this assignment is well founded for these reasons and also because the instruction assumed the property had been stolen. In jurisdictions where such instructions can be given at all, the question of recency is for the jury unless the possession was so close to or remote from the larceny that reasonable minds could not differ on it; in which latter event only can the court rule on the question as a matter of law. 36 C.J., sec. 568, p. 941.
Under the evidence in this case most favorable to the State the appellant's possession postdated the larceny about two months. In State v. Plant,
But the more comprehensive objection to the instruction is that it singles out and comments upon the fact of such possession. Prior to the decision of the Swarens case the unexplained possession of recently stolen property raised a legal presumption of fact that the possessor was the thief. Hence it was the practice to instruct the jury on that presumption. But the Swarens case in overturning the doctrine, declared such possession was merely an inculpating evidentiary circumstance and that it was improper for the court to "comment on the evidence, either in instructions or otherwise." [294 Mo. l.c. 155 [457] (II), 241 S.W. l.c. 939 (4).] Contemporary and subsequent decisions have all recognized the Swarens case denounced such instructions as improper comments on the evidence.6
It is true that after the giving of the State's instruction No. 5 and appellant had excepted thereto, he asked and obtained an instruction No. 6, which told the jury the possession of stolen goods creates no *Page 584 presumption of guilt, and did not in this case as against him, if they found he had such possession of part of the goods. But it is our view that this did not waive or cure the error in the giving of the State's instruction, which went further and told the jury such possession was a circumstance to be considered by them.
[12] Only one other assignment of error need be noticed, this because it may recur in the event of another trial. Appellant's counsel endeavored to prove on cross-examination of the police officer who made the arrest, that at that time appellant stated he had recently bought the adding machine and typewriter from a man whose first name was Frank. And an effort to elicit similar testimony was made in cross-examination of Miss Lawson, to whom appellant had sold the typewriter. This was followed up by an offer of proof in both instances. The evidence was not offered on the theory that it was part of a conversation between the witness and appellant, for the State had not proven any such conversations. The proffered testimony was excluded on objection because it was self-serving. It was that, clearly. But appellant seems to have the idea that since the rule of evidence under consideration throughout this opinion calls for some explanation by the accused of his possession of recently stolen property; and since under the Constitution and Sec. 4082 he, himself, does not have to testify; therefore his extrajudicial self-serving declarations may be proven. There is no such law.
For the error noted, in giving the State's instruction No. 5, the judgment is reversed and the cause remanded. All concur.