*1 SUPREME COURT OF MISSOURI, (cid:127)CO o
State v. Kolafa. Appellant. THE STATE FRANK KOLAFA, Two, January 2, Division 1922. Conspiracy. EVIDENCE: Proof of Other Crimes: a con- Where spiracy purpose persons, between two or more formed the crime, shown, committing of com- is several crimes are pursuance general plan, mitted the crimes are so proof prove to related each other that the of one. tends to the 'other, co-conspirator and on the trial of commission the may of charged one the be Where the others shown. defendant was with, having Illinois, stolen an automobile in evidence agreed it was him and two that would between each others tl^at automobile; belong an steal that one stolen was second defendant; stolen, they brought that were to be t’ol as were garage them, separable mixed, parts to the of one of their be destroy identification; so as to means of that after the first brought was stolen and to Missouri two of them to the garage other, body its was removed and its number de- faced; that thereafter stole the defendant second automobile stealing third, and assisted in both of which were taken ' garage, removing all the same and that three assisted in body upon placing of the it second and first chassis stolen, removing and in from the three marks 'of identi- fication, competent. Pleading. allege necessary
2. CONSPIRACY:' It a con- is not spiracy charged, prove commit crime in order to that pursuance conspiracy. the crime was committed in conspiracy only charged—the is an incident of the crime means accomplished—and may proved by which it is it be circum- stantial .evidence. being 3. -—: Instruction: tending Non-Direction. There evidence conspiracy to establish a between defendant and others to automobiles, telling steal jury proof an instruction what is necessary conspiracy to establish the and what crimes com pursuance may mitted may prop of it existed, be if shown erly given; conspiracy merely but a is incidental and collat eral, crime, is an essential element of the and therefore respect non-direction in to it is not error. 4. OTHER CRIMES: Intent: Instruction: Harmless Error. Where speaks itself, is, the crime apparent where intent is commission, from the fact of its evidence of 'other like crimes OCTOBER 291], TERM, intent; purpose showng where inadmissible for the for the other crimes is admissible jury telling* showing conspiracy, instruction an *2 showing purpose is such evidence admitted for the sole charged harmless was committed is intent with which crime jury State, error, prejudicial fact since the and is in right in con- such other crimes to consider evidence of has tending the com- nection with the other evidence to establish charged. mission the crime defendant EVIDENCE: Res Gestae: Conversations. Where charged having September &th and with automobile bn an showing bought another he had automobile introduced evidence 1st, paid it time of on October for it retained until arrest, at the time his between him and the vendor conversations gestae purchase have none of the elements res made charged, evidence. crime and are admissible in undesigned, gestae con- res a statement must be order spontaneously temporaneous, spring fact or of the main out particular litigated it relates. act to which Appeal City from St. Louis Circuit Wil- Court.—Hon. Taylor, Judge.
son A.
AeEIRMED. Harvey appellant.
Thomas B. (1) permitting prosecution, The court erred timely objection defendant, to show other over the 42 Mo. larcenies defendant. State v. Daubert, Boatright, Spray, Mo. State v. 569; 174 242; v. 108; v. 184 W. 33; Ottrick, S. State 182 State 969; (2) that the Instruction 213 S. W. Cummins, tending theft thei had introduced show State of said jury that the could consider automobiles, testimony “for the for which was ad- motive conduct is, intent, mitted, show respect prop- to the the defendant acted with with which erty er- trial,” now on theft of which for the (3) prejudicial. Authorities above. cited roneous and permitting in not the defendant Error committed attend- and conversations all the circumstances to show 342 SUPREME COURT OP MISSOURI, acquisition regardless of the Willmann whether par- were the acts and statements of the bystanders. ties to the sale of 'car or of Potter v. 31 McDowell, 62;Mo. State to nse v. 35 Mo. Schneider, Snyder 533; Stewart v. 43 Mo. Lawrence, 322; v. Free, p. 360; 114 Mo. v. Elkins, 22 344; C. <J. p.; 450',sec. 540; 16 C. 1114; J. sec. Echols v. State-, y. People 41 Kelly, 298; So. Cal. Cline, Iowa, Jordan, Iowa, 506; Doss v. App. Way 28 Texas State, Cyc. 35 Lad. 409 25 State, ; (4) rejection Efcror of evidence was permitting also committed the defendant to show original cylinder blocks of hear automobiles they, numbers made into them, and that when replaced have to be reason, the new block does not bear any number. *3 Attorney-G-eneral,
Jesse W. Barrett, and Albert Attorney-General, respondent. Assistant Miller, (1) permitting The court did not error in commit tending prove the testimony introduce State to the appears theft of automobiles. Where from part evidence that the theft of automobiles was of but a embracing plan the common or scheme the commission proof or two more crimes related so to each other that tends to-establish one evidence of theft other, charged of other than the one in automobiles indict- ment admissible. Othick, 108;' is State v. 184 S. W. State y. Prunty, Hyde, v. 376; 276 Mo. 234 226; State Mo. State Bailey, (2) v. 190 Mo. 279. The court did not commit refusing appellant error in admit evidence conversations had person ap- attending a between and third what pellant acquiring alleged be his manner claims to (a) prosecution grand larceny stolen car. a by make defendant cannot for himself adduc- evidence ing designs his own declarations as to his motives and n property. when he obtained the 55 State v. Shermer,' (b) Self-serving and acts cannot Mo. 85'. statements Yol. 291] 343 OCTOBEE TEEM, v.
State
Kolafa.
Mox-
introduced
the accused. State v.
ley, 102 Mo.
v.
394;
127;
132 Mo.
State v.
State
Good,
Long,
(c)
properly
The State introduced as one Nociría, witness who owned a Ford model automobile, 1916, which he fifty said worth three hundred dollars. theOn night September he left car his 8,1917, on Collinsville East Saint Avenue, he came out reported Louis, and went into a store. When
shortly gone. afterwards his car He police city his loss to of the Louis, Saint body afterwards saw chassis at car police body station in Saint Louis. The had been pieces, body sawed into three the chassis had a different and the motor it, number had filed iden- been off. He parts private tified of his car marks he made. had principal witness for the Albert 0. alleged Biehslich. At the time of the theft he was seven- years age. teen Biehslich that he testified au- was an got acquainted he that mechanic; tomobile with Ehren- berg Ehrenberg meat- market at business Cherokee Street. the rear garage building enough large awas hold at least five automobiles; also at rear next under door, place the same at No. roof, 2116, was a vacant called slaughter Ehrenberg house. owned a Crawford au- delivery tomobile he used as a which truck connec- expensive, tion he business; with decided was too Ehrenberg, Ford. and wanted a agreed Kolafa and witness would steal a Ford automobile for Eh- renberg personal Ehrenberg use. directed Kolafa and go purpose. East Louis Biehslich Accordingly Saint Kolafa and man named
Biehslich, Ted, a *5 TEEM, 291]. OCTOBEK y. Kolafa. Ehrenberg, car a went to East Saint Louis friend they they belonging saw until Biehslich; around drove stopped Avenue, on State or Collinsville a Street Ford occupants the witness did not remember which. drug got street; the Ford store across out and went into a Ted the Ford car; back drove car Kolafa had witness’s anybody gun came. shoot a and said would away, with Kolafa cranked the drove Witness Ford and Bridge They following. and to over Free drove waiting Ehrenberg for them, Cherokee where was Street, put explained garage. They to Eh- and renberg,, in the. car present, got being the car.
Kolafa where together. away That was about and witness went Kolafa night. body eight nine at Afterwards or o’clock pieces; into the car taken and sawed three was off put on. number In Eh- number was filed off and a new n renberg all shop there a set of dies kinds of were and Ehrenberg putting Kolafa, tools for on numbers. top engaged in Nochta’s car that work. The witness garage slaughter into the house and was taken from changed put up all body the rafters. The tires were on removed. roadster of identification were A marks bought by Ehrenberg placed twenty-five dollars was for. body put was on, After that car on the chassis. paint shop painted accessories sent to and some put put body Later the thus on. removed, touring body put touring-car on the chassis. The Lange body car taken called the which was off Pine the witness Nineteenth and Kolafa and at brought Ehrenberg’s garage. re- Streets, thirty part stealing dollars for ceived Ehrenberg, twenty-five received and witness first car for belong Ehrenberg, was to The first car stolen dollars. belong Kolafa. car stolen was to Be- the second money Lange Kolafa had car received fore the was stolen Company Motor for Ford chassis from the Landsman Lange stolen; car was afterwards to be delivered; body taken and the chassis delivered off, body Garage by witness; Kolafa and Landsman MISSOURI, SUPREME OE COURT y. Kolafa. *6 by Lange put Ehrenberg Ehren- car oar on the berg, Kolafa and off a oar witness. "Wheels Compton Avenues and on Lawton witness and put Ehrenberg were were on the or car, Nochta car, then, got police into on it The when the it. witness went particulars changes explaining made on the the how were purpose concealing their identi- different cars for the of in the in which stored Ehren- ties, and manner were berg’s garage, and used. State,
One for the as witness Willman, introduced testified that his Ford stolen November automobile was Eighth Washington Avenue; from 23, 1917, Street and (cid:127) parts he was unable afterwards was shown car, identify Lange them. A. that his Ford Louis testified touring car Streets; was stolen at Nineteenth and Pine body police the afterwards at the saw chassis having body station—the been mounted on the chassis car. another policeman, Hayhurst, a testified that he arrested Eh- renberg, body Biehslich Kolafa. He found of a Ehrenberg’s touring up' car cut two on the rafters garage. Ehrenberg’s possession found in chassis many great when arrested identified Nochta. A Ehrenberg’s place, different articles were found about including other tires automobile accessories. Other policemen were sworn who corroborated Biehslich as changes made and the different cars, several Ehrenberg’s place. of tools found in kinds
The defendant introduced evidence to that he show reputation, good had October 1, 1917, he had purchased Lange, a car known as the Kolafa or paid it, which the car he car, and had $140 possession February, when arrested in Other considering will be noticed in evidence introduced points presented reversal. appellant per claims there
I. was error in larcenies—stealing mitting the State show of auto- 291] TEEM, OCTOBER. v. Kolafa. the one for which mobiles—other than above As trial. shown defendant on Other Crimes: parts of two of evidence, Conspiracy. statement Lange from car stolen car and the automobiles, placed taken off and were Compton Streets, Lawton Ehrenberg upon car. conspiracy two or more between there is a
Where committing parties, crime, for the formed pursuance are crimes committed and several general plan, each other are related crimes so prove proof another, and, tends of one one, the commission the trial a defendant may l. c. Lewis, [State be shown. others *7 Bailey, 280; Cummins, v. 279 l. c. 190 State Mo. l. c. 232 S. W. 392, v. 288 Mo. Carroll, 207; Mo. l. c. State Hyde, Prunty, 234 376; 276 l. State Mo. c. v. v. 702; State necessary, to examine therefore, becomes 226.] Mo. l. c. It sufficiently conspiracy a was to see whether the evidence testified, that Biehslich let in such to evidence. shown Ehrenberg first agreed have the should that three an pick of the accessories stolen, car Ko- car; Kolafa’s known as to be stolen, other car be car, as the car known Willman to have the lafa was Washington this was stolen Eighth Avenue'; Street and at length by at who described Biehslich, accomplished. the theft -was manner which repeated to be stolen car that the first The witness Ehrenberg’s car, be Kolafa’s one was to car, to be and Kolafa were car. Witness to Biehslich’s one be changing stealing engaged them assisted all of identification. the marks of __ conspiracy necessary allege to commit a It was pur prove committed in order crime conspiracy conspiracy. not the of a suance by charged, which to it—the means an incident crime accomplished. Mo. 232 392, v. 288 [State Carroll, it was proven conspiracy by may circumstan be 702.] A S. W. App. Forsythe, Mo. v. 160 [Allen tial evidence. 276 Mo. l. c. v. Bersch, State Shout, charged, those crimes than Evidence of 414.] l. c. 348 MISSOURI, SUPREME COURT OP y. Kolafa.. parties pur committed is admissible for same pose proving- conspiracy or common scheme. [State v. 288 Carroll, 232 Mo. S. and cases 702,W. testify cited.] While the witness Biehslich didn’t direct ly any express agreement between himself, Kolafa, and Ehrenberg they go into the business should of steal testify agreed among he did cars, them selves to steal each car; that the first car stolen was to be Ehrenberg’s, the second one to Kolafa’s, and the next belong one to to the witness; that the cars stolen were separate parts Ehrenberg as to mixed their so that the subject present charge, part had some each car All stolen. the cars stolen were taken to the place by persons same the same and the identification possible joint marks on each obliterated as far as work the three. We think evidence was sufficient finding conspiracy. to warrant a of a might very properly The court instructed the have jury necessary prove as to conspiracy, what was might properly conspiracy what be shown if a exist respect but the failure of the ed, court in that is not complained merely of. It a matter incidental and (cid:127) collateral, an essential element of the crime, respect therefore, non-direction in to it was not error. [State Starr, l. c. to 183; State v. 232 Mo. l. c. Harris, 190.] c. Webb, W. l. S. *8 appellant assigns giving II. The error to the of an number instruction, five, behalf of the as fol- State, lows:
“In this case has introduced evidence tend ing prove to theft other of automobiles than that alleged in to indictment have been stol n *5 place. time same You en’ Other Crimes: Intent. you only are instructed that can consider testimony purpose for the for it which was admit- that ted, is, intent, show conduct motive with respect property which the defendant acted with to the 291] OCTOBER TERM, yon for will the theft of he is now which oil trial, you purpose, con- consider it for no for cannot other property vict the the theft defendant for of ’’ than that indictment. named complaint proof if The the crimes, is that the purpose of not for the admissible at all, was admissible showing Where a conduct motive.” “intent, ap speaks intent for where the is, crime that itself, parent from its evidence of other commission, the facts of showing purpose like crimes is inadmissible for the l. c. [State 110, intent. cases Patterson, of the lar In this direct evidence cited.] case there was ceny. taking in the manner If Kolafa the car assisted susceptible not of an stated the explanation; act was evidence, speaks Therefore, for itself. innocent admissible evidence of other similar crimes was prop the'purpose showing’ The evidence was intent. erly different shown another and admitted, above, as jury question then is was mis The reason. whether prejudiced by the instruction. led the defendant only jury that could were told the defendant beyond proven a reasonable doubt if it were convicted complaint to been have the car alleg’ed that he stole spoke intent itself and the stolen. In that the act conclusively that to consider The instruction followed. showing noth- intent added for the evidence limited their con- that The instruction conclusion. n in manner crimes of the evidence of other sideration jury right prejudicial con- had a State. tending evidence, the other as sider with it, connection charged. Since the commission the crime to show nothing; limited case, to the instruction added important in a manner the consideration it. harmed its the defendant was force, weaken to show III. The defendant offered evidence Lange bought he car or the Octo car, paid one Huber; ber from man named forty and retained it until it, dollars for hundred and *9 MISSOURI, SUPREME COURT OF February following he was arrested in of the Res Gestae. year. by Kolafa, This was sworn to Ida wife by defendant, defendant himself. In this connee tion defendant offered to show conversations had be person purchased tween him and the from whom he purchase car at the time the was made. This evidence assigned court, was excluded and error is to that ruling. appellant relating cites a. number of oases gestae. the introduction of statements as res This evi `yesgestae. dence offered has none of the elements of It subject-matter relates to a transaction and a different constituting charged. from the one in issue the crime subject charge car, here, The Noehta which is the September alleged purchase 8, was stolen. 1917. The place following. another car took the first of October gestae undesigned order to be res a statement must be spring spontaneously out of the transaction to which [State Reeves, 1030, it relates. 195 S. W. and cases contemporaneous cited.] It must be with and illustrate [State McKenzie, the ~nai~fact in issue. 228 Mo. l. c. 399, 400; Robinson, 253 Mo. l. c. 16 C. J. p. p. Day, sec. sec. supra, 248-9.] McKenzie, said, This court in State v. gestae may, therefore, l. c. 399: "The res those circumstances which are the be defined as undesigned incident particular litigated. act, of a and which are admissible s'uch, when illustrative of act." litigated act in this case was the theft of the Any appellant Nochta car. statements made at spontaneous taken, the time it was if and illustrative of act, would have been admissible. Here are offered place time, conversations which took at another in an- place, concerning another transaction which is only incidentally, no,t connected with the case. It is even connected with the commission of another crime. The permitted defendant was to' show without restriction all alleged purchase that he did in connection with the bought got it, from whom he it and how he TEEM, OCTOBEE 291], *10 Fahey Haekmann. accompany- paid it. The conversation for much
how theory' pure hearsay admissible. ing no and on it was Complaint other the exclusion of is made IY. upon examination of defendant, offered hut court find committed we fail to the record respect. in that error (7(7., judgment Bailey and Beeves, affirmed.
concur. opinion by foregoing PEE CITEIAM:—The White, opinion adopted of the court. All as the
isC., judges concur. HACKMANN, FAHEY v. E.
MARGARET GEORGE Appellant. Auditor, January Banc, Injunction: Taxpayer: TO SUE: To Prevent Issue of 1. CAPACITY Missouri, taxpayer Bonds. A and the resident of who is a State, legally for of real estate assessable owner situate in legal taxes, capacity county to maintain a state equity has suit proper enjoin óourt, in the State Auditor from issu- authorized, by selling bonds, and- of the State constitutional Legislature, ground amendment and an act legally ratified, said amendment was and said act legally enacted. CONSTITUTIONAL AMENDMENT: Publication for Three Weeks County. proposed providing in One The Constitution that a amend- “published weekly newspaper, ment shall if some be, county State, there within each consecutive four ensuing,” preceding general weeks then next election next that, proposed it will not be published amendment was held because the only county, re- three in one but for the weeks quired counties, four in all it was not consti- weeks tutionally publish submitted to the voters. 'omission proposed county make amendment for one week in one did not publication void the weeks the other in all consecutive four