State v. Griffin

| Mo. | Jun 3, 1919

WILLIAMS, P. J.

In the Circuit Court of the City of St. Louis, defendant was tried and convicted of the crime of removing’ and concealing personal property covered by chattel mortgage. The punishment was fixed at six months’ imprisonment in the city jail, and defendant has duly perfected an appeal.

The evidence upon the part of the State may be summarized as follows:

In May, 1916, the Weber Motor Car Company, a corporation located, at 2217 Locust St., St. Louis, Mo., sold to the defendant for the sum of $300, one secondhand Ford automobile. Defendant paid $125 in cash and gave his notes for the balance, securing the same by a chattel mortgage on the automobile. By subsequent payments defendant reduced the mortgage indebetedness to the sum of $126.27. In May, 1917, after having written numerous letters to defendant concerning the payment of the balance then overdue, representatives of the mortgagee called upon and talked to defendant at his place of business on Delmar Avenue. They requested that defendant either pay the balance of the mortgage indebtedness or surrender the car. He replied that he could neither pay the notes nor deliver the car. He finally said that he would give up the car, and that it would be found at the back of his residence on Pendleton Avenue. The representatives of the mortgagee then went to defendant’s residence and made ax search of the premises, but were unable to find the car. A short time thereafter a representative of the mortgagee again called upon defendant, demanding either the money or the car, and in that conversation told the defendant that the mortgagee had been unable to find the car at defendant’s residence, the place where defendant told them it could be found. Defendant then said: “I cannot tell you where the car is, I do not know. ’ ’

Defendant did not offer any evidence. The jury returned the following verdict:

“We, the jury in the above entitled cause, find the defendant guilty of feloniously, willfully and unlawfully removing and concealing personal property, covered by a chattel mortgage, and assess the punishment at six months in the city jail.”

Verdict I. Appellant contends that the verdict is insufficstrPPort the judgment, in that it is a special verdict and fails to find all of the elements of the alleged crime. The learned Attorney-General confesses error in this regard.

We aré of the opinion that the point is well taken. The verdict is a special verdict. [State v. Modlin, 197 Mo. 376" court="Mo." date_filed="1906-06-19" href="https://app.midpage.ai/document/state-v-modlin-8015825?utm_source=webapp" opinion_id="8015825">197 Mo. 376.] Being a special verdict is should find all the essential elements of the offense. [State v. Bishop, 231 Mo. 411" court="Mo." date_filed="1910-12-13" href="https://app.midpage.ai/document/state-v-bishop-8017357?utm_source=webapp" opinion_id="8017357">231 Mo. 411.] One of the essential elements of the offense is that the act must have been done “with intent to hinder, delay or defraud such mortgagee.” [Sec. 4570, R. S. 1909.]

The verdict is also defective in other respects, but the foregoing is sufficient to'show the insufficiency of the verdict, and, to cause a reversal of the judgment,

II. Appellant further contends that the evidence is insufficient to sustain a conviction of the alleged offense and that therefore the judgment should be reversed and the defendant discharged.

When the record upon appeal is such as to make it reasonably apparent that evidence sufficient to sustain a conviction cannot be produced upon a retrial it is and should be the practice to order the defendant discharged; otherwise, the cause should be remanded to be tried anew, if the officers charged with that duty deem further prosecution of the cause advisable. [State v. Elsey, 201 Mo. 561" court="Mo." date_filed="1907-03-05" href="https://app.midpage.ai/document/state-v-elsey-8016024?utm_source=webapp" opinion_id="8016024">201 Mo. 561, l. c. 572.] Whether the evidence in the present record is sufficient is rather a close and debatable question. What evidence a retrial may bring forth we have no way of knowing. We think the facts shown by the present record are at least not such as to make it reasonably apparent that a case cannot be made. It therefore follows that the judgment should be reversed and the cause remanded.

It is so ordered.

All concur.