*1 OCTOBER, 1924. TERM, 507 ' State v. Levan. upon
dwelling which there no evidence house when to base the instruction.
Complaint given made of instruction numbered is on. behalf of the that the State, the which told testimony purpose showing* de- the offered for the reputation morality fendant’s considered should be only purpose affecting for the credi- the defendant’s bility purpose, as a and for no other should witness, guilt not be considered evidence of the defendant’s as charged. correctly of the stated crime The instruction the law in were error the relation to the matter; if because, position complain, defendant is in such no any, error, if in favor. It -not a comment his is upon always proper for the evidence; court- instruct purpose to the effect of evidence very may for which it be received. This is weight give directing different from what evidence. The case of Carr, v. Stаte S. W. support objection. is cited in that Examination judges case will show that the three con- court only majority curred result, court and a holding proper (1. concurred that the instruction was 1048-9). c. judgment
For the reasons mentioned is reversed P.,/., and the cause concurs; remanded. Blair, David E.
Walker, J., absent. Appellant.
THE LEVAN, STATE v. WILLIAM Two, Division December Spectators JURORS: at Kindred Trial. The err in refusing quash jurors panel alleged ground on the spectators jurors severаl of them were trial a week earlier proven of another man it was man at which that said other bought whiskey going gambling and had seen on defendant’s days trial, pool-room sixty prior within where defendant’s jurors interrogated their voir dire ex- counsel several of the OP SUPREME COURT ' amination, was made no reference and each of them stated against charge or to
the trial of man to the said other *2 therewith, nothing any he and that fact or circumstance cоnnected against in the case had his verdict heard would affect or influence defendant. Knowledge. Knowledge Guilty that
2. RECEIVING STOLEN GOODS: behavior, goods may the and from conduct were stolen be deduced goods, received, person kind of the character the from whom Testimony received that defendant and when the hour received. plug eight twelve-pound tobacco standard caddies of a well-known ex-convict, bоy the to who came an from a known to him be pool-room by night, him he found and told had back door of his they each, were when would sell them for two dollars them and paid each;, eight after defendant dollars that worth more than brought room, they them, in the the seller told but before were car; got and a that of the caddies out of railroad him he had two deputy that he hesitated defendant told the sheriff afterwards stolen, tobacco, buying he was confident it was the guilty finding support amply defendant a verdict sufficient knowledge caddies, having with stolen received the whole sheriff, testimony deputy they goods. The of the stolen that were suspicious independently under which defend- circumstances of the finding tobacco, jury in that warranted the alone ant received the property. knowledge guilty was stolen that he it with received Jury Agree: Further Instruction: Punishment: Unable VERDICT: Exception. twelve-pound Eight Court: No Assessment alleged plug from $71.04 had been stolen the value unlawfully car, charged having with and a railroad they feloniously them, knowing property. were received stolen and ex-convict, bought at an who them for sixteen dollars He ball-park, but, found in a after told him he had them certain first delivering receiving payment them, he for them but before told him got out of the railroad car. Defendant claims two them charged knowledge at most that those two he can with that they thirty dollars, stolen, were less than worth instructing jury permit ,he find court erred as to them to goods thirty stolen of the value of dollars. The court had received jury they guilty that if instructed the found the defendant of know- ingly buying property thirty or stolen of the value of dollars more they punishment imprisonment peniten- should assess his at in the they tiary years, for not less than twо or than five and if more they thirty goods value of the than dollars found the to be less jail punishment county imprisonment should assess his fine, etc., exceeding year, one or not instruct them OCTOBER TERM, State v. Levan. part They duty punishment.
that it was a of their to assess the reported they deliberated for a time and to the court that could not agree; they agree upon punishment. that were unable to prepared instruction, verdict, then аn in the form of a recit- ing prop- guilty that “find the defendant erty knowing bought "it, charged, it was stolen when he and as goods was-dollars, and that the value of the un- and we are upon agree punishment.” objection able to No was made or ex- ception by defendant, giving instruction, saved of this “Sixty-seven filled in the words and 20-100” in the blank space, paper verdict, thereupon returned as their years’ imprisonment the court fixed defendant’s at two penitentiary. Held, first, exception objection an giving instruction, made for the first time after the verdict, late; second, their came too returned would court, proper instruction, if in its have first had told the agree that, upon punishment, if were unable to it, but it was assess not error not court would include such *3 instruction; third, the court statement err submit- ting of verdict which enabled the to a form act accordance statute; and, fourth, expressly the court was with the authorized (Sec. 4048, 1919) by'the punishment R. S. to statute assess the circumstances. under 34; Juries, par. 2, 1, Receiving Headnotes: 35 C. J. Stolen Citations 527, 529; 3, Law, pars. 2602, Cyc.
Goods, Criminal 16 C. J. 34 2613. Appeal Kelley, Scott Circuit Court.—Hon. Frank
Judge.
Aeeirmed. Attorney-General, Harry Barrett,
Jesse W. L. Special Thomas, Attorney-General, re- Assistant spondent.
(1) findings compe* The the trial court as to teney jurors appearing will not be disturbed unless clearly'wrong or an abuse discretion. v. State 169 Mo. v. Jackson, 291; 162; Williamson, State 644. 106 Mo. (2) Poor,
State v. 286 Mo. There was substantial appellant’s guilt. Appellant evidence of from the must, 510 SUPREME OF COURT v.
State goods have believed the stolen. circumstances, Kosky, Mo. 1;Mo. v. 186 Richmond, State v. State 191 goods is The intent with which the were received 71. Knowledge theft not made an element of offense. determining 162. Rich, is the element. v. 245 Mo. State admissible, to the caddies of tobacco was Evidеnce as six being whether immaterial been stolen same had actually by some from the car Freeman or taken out person. merits No variance material other prejudicial appellant the case was found Tracy, Appellant (3) trial court. v. 294 State Mo. present right when the verdict was received. present statutory, to be not include does coun- (4) Appellant complains sel. R. S. sec. submitting the court action of a form of verdict guilt whereby might or innocence be determined but punishment left undetermined. previously reported inability agree to the court its punishment although agreed guilt. S. R. as to v. 4048; sec. State v. 294 ITubbs, 224; Mo. State Emery, 500; 348; Gilbreath, Mo. 76 Mo. State, Fooxe v. 502. The form Mo. submitted fails to appellant’s instructing bear out contention of “the court writing that the fix court could and would guilty.” if the returned a verdict HIGBEE, C. On March 1923, an information County, charging wаs filed in the Circuit Court of Scott *4 county, January that the defendant, at said on or unlawfully feloniously buy 29, 1923, and receive and eight twelve-pound of star value tobacco of the goods of $71.04, and chattels of the St. Louis- Railway Company, corporation, San Francisco then a lately feloniously away, before stolen, taken and carried knowing he, the said Levan, William then and there well goods feloniously the said and chаttels to have been away taken carried stolen, and etc. aforesaid, TEEM, OCTOBEE y. information is on Eevised Statutes based Section returned case tried and the was following verdict on March 1923: guilty
“We, find the defendant bought property knowing stolen when he was goods charged and as and that the value of the bought sixty-seven dollars, was of 20-100 the value agree'upon punishment.” and we are unable to years’ The court two fixed the imрrisonment penitentiary. new in the for Motions trial and in arrest the defend- overruled, were filed and duly imprisonment peniten- ant was sentenced to tiary years, appealed. terma two complaint
I. The first trial the motion for new panel is that refusing quash the court erred jurors spec for the reason that several of them jurors tators case the State Jury was Jeffries, tried March which it 1923, at proven bought whiskey that Jeffries seеn and had sixty poolroom gambling going in Levan’s within on days prior to the trial, and that evidence such prejudicial prevented to defendant and giving fair trial. The defendant’s counsel interrogated jurors, on several whom each of nothing his dire or voire said he had heard would affect influence verdict in no his the case on trial, and by any reference trial was made at the witness Jeffries against 'charge any Levan, or to fact circum quash stance in connection therewith. The motion to properly overruled. II. The evidence the State was to the thai effect Meyers January Liggett Company, & Tobacco shipped plug 27, 1923, nineteen boxes smoking three cases of tobacco over the St. Louis-San *5 SUPREME OF COURT (locally known Railroad Francisco of case. car Frisco), Missouri, Louis, from St. Facts Taylor consigned & Blackwell F., 124, 521 S. paсkage shipment one included This at Morehouse. strapped plug eight twelve-pound tobacco, caddies of Star by the as shown together, value of $67.28, at it when arrived and, evidence. The car was sealed good con- County, it was sealed Scott Chaffee, had served he admitted Freeman, dition. Theodore who larceny, burglary and a term in the reform school January evening at that on the testified eight to- quarter caddies he had seven, about a got six the other bacco; of the Frisco car two out over west side track, on the west side yards, in freight south of the Frisco end house, park; was some Missouri, down close to the ball Chaffee, He two it. took car, out of boxes Kroger’s down in the them store, of tobacco behind set alley Mr. went over tried to sell the Levan; give sixteen he Freeman Levan said would first Levan that dollаrs it. Freeman told he got park; the tobacco out at the ball then said he found just it This Levan over on the team tracks. after finally paid him. Freeman When he made the deal, brought Kroger’s told Levan he over behind store. open he side; Freeman said ear on the west eight broke into it; didn’t know who he delivered night; Bill Levan caddies to dark. 7:30 it was through On he cross-examination testified: “I carried it pool-room. alley in back оf Levan’s told First, I paid it, him I found and after he me for next it, thing got got I him I told where I it. told I out him two already of the car—the other six were out.” deputy Tom Scott, sheriff, identified the boxes got pool-room. of star tobacco. He them out of Levan’s bought Levan told them witness he from Theodore Freeman. He said Freeman came there and wanted sell him this tobacco and he hesitated about OCTOBEE TEEM,
State “He finally for he was cоnfident it was said: stolen; he jnst bought cheap insisted until I it couldn’t it; 1 was hardly keep buying' it.” from said he He knew boy school, Freeman didn’t reform he know what had been for. tlrere eight part tobacco caddies were identified Meyers shipment Liggett
of the of tobacco from & Company up checking Tobacco above mentioned. On way shipment bill of this it in the car to, referred package eight was found short this car caddies. The freight was on house track аt the south end house. “ bought Levan,
William testified: defendant, I eight caddies star tobacco Freeman from Theodore January. pool-room my last I was in Chaffee, park Missouri; he told me he found it in the ball I Frisco railroad. told him I didn’t want he turned it; and off started came and back said: want ‘I to sell ’ you, right. it to all him I told I its would it he take nothing delivered it to me. He said about the tobacco being anybody stolen. I never denied to Tom Scott or bought that I this tobacco from Freeman. I Scott took pool-room my and delivered this I tobacco to him. anybody never anything told boy Scott or else this said being nothing about this tobacco stolen. I knew having been stolen; if I had known it have I wouldn’t bought it. At the time we made the Freeman deal, pool-room. out tobacco back of the I know don’t whether he he said had it out there. When he first came eight in he me told hе caddies of me tobacco; told park he found it down there in the ball and would take eight sixteen dollars for it; said there was caddies right. star I tobacco. him brought told all It was at the back door about 7:30.” appellant,
III. The' motion his trial, new challenge sufficiency does not of the evidence (cid:127) 306 Mo.—33 OF COURT SUPREME v. Levan. part shipment eight were caddies these Taylor More- consigned at to Blackwell & S. 124, 521 on board cаr and delivered house Guilty Knowledge. sealed arrived the car F.; good or that the condition, and in sealed Chaffee bought Free- he he which admits caddies of tobacco shipment. particular part, con- His man were a this bought the tobacco he time he that at the tention is property; knowledge stolen that was have actual the caddies show that six of that the evidence fails value of the two stolen *7 thirty not in and that the court erred dollars, than less jury directing defendant for the return a verdict buying property charge stolen of over thirty dollars. value of 84 Richmond, 71, 87, v. 186 Mo. W.
In State S. Judge quoted 664: from v. Ga. Cobb 76 State, Gantt may “Knowledge deduced from be conduct well person re the character ichom behavior, from goods, and the hour and the kind when ceived, received. ’ ’ the caddies The received of tobacco, dеfendant very suspi- under business, in course but the usual Freeman, known the defendant cious circumstances. as an to the back door of the ex-convict, came defend- night eight pool and told him he ant’s room alley; that he them caddies of found about value. and would them for one-fourth'of their sell paid that after evidence It seems defendant bringing them for the before into the build- caddies, ing, got he Freeman told defendant twо of caddies meaning car. the railroad defend- car, out deputy-sheriff, Scott, ant told hesitated he he tobacco, was confident testimony, If the believed Scott’s can stolen. there guilty knowledge, no of the defendant’s in- doubt suspicious dependent of the which under circumstances property, have which alone would he received Yol, 306] OCTOBER TERM,
State v. Levan.
finding
goods
warranted the
that he knew the
property.
Kosky,
were
In
v.
“The suffi- is as to the ciency support of the evidence to the verdict. Fleming,
character and habits with which prudent put any was familiar, think, we have would, upon inquiry acquired man toas how he them he when wanting buy, offered to sell, and defendant was cigars. Especially twelve hundred is this true, when the boy lounger, was a common loafer and means without property, and offered to sell and did defend- sell to cigars ant the much than less their value. He ’’ they must have known or believed were stolen.
See also State Rich, 162, 167, Mo. 149 S. W. ample
There was
evidence in the
circumstances
this
finding
case to
warrant
that the
of tobacco were
all stolen from
car;
the railroad
they
possession
found
the exclusive
of the de-
recently
fendant
thereafter. From these facts the
was authorized to find that the defendant received them
knowledge
with were stolеn, if
failed
he
satisfactorily
explain
acquired
posses-
how he
their
*8
[State
sion.
Miller,
See also 34 Crim. Law, sec. exceptions IY. The bill of close recites that at the argument jury cf the the retired to consider of their p. verdict between four and 4:30 m. ; that the at court, request, jury brought their ordered the into the court p. m., 1>00m when'they at about or 8:30 nine Timely reported they agree could not verdict; on a Exception, they agree that punish were unable to on the ’jury ment. The court then ordered the to retire charge they and, of the sheriff after had remained jury thirty prepared the room about minutes, the court in blank form the verdict which was afterwmrds returned jury in this case. The filled in the blank form of OP MISSOURI, SUPREME COURT
State v. Levan. “Sixty-seven figures, and and with the words verdict ‘‘ ’’ exceptions There- continues: 20-100. The bill morning at nine o’clock the of March-16, on after, counsel first learned at which time the defendant’s a. m., by jury, being and the then returned verdict said by objected excepted giving duly the the to there and jury verdict aforesaid form of court'to by receipt The recita- the court.” said verdict morning following first learned the that counsel tion is that been returned. It is not claimed the verdict had. exception that an saved was absent or counsel complained It court of. to the action the time an verdict, rеturn of the to enter after the late, was too exception action objection to the save an day. previous court on out After the hours
V. reported they substance court returned agreed guilty, they could on a verdict of punishment agree be inflicted. court not on the they properly that if instructed found property knowingly guilty thirty they or more should of the value of dollars by imprisonment peni- punishment in the assess his yеars tentiary not less term than two more a nor they years, be found than five if the value thirty punish- dollars his should less than assess jail exceeding by imprisonment county ment not exceeding year by or a fine not one hundred dollars, one imprisonment. fine and or both such
¡Section4048, Revised Statutes reads: “Where guilty agree find a verdict of and fail punishment inflicted, do not declare such . . shall punishment verdict, their .. judgment and declare the assess accordingly. and render ’’ court did not instruct part duty punishment, to assess the of their but instruct- *9 they they do if that should found the defend- ed them OCTOBER TERM, v. mistrial guilty. to ant enacted avoid a The statute was by agree punishment jury the if unable to on the were punishment that empowering to assess the the court distinctly jury be contingency. Why not should the provision that of the statute order wise advised this affords might very case a avoided? This mistrial be instructing the propriety of so an illustration of the disagreed. reported they jury They in advance. they they could statute in advance of the
Had known They accordingly. governed themselves have legal presumed mere that a law, to know disagree- judge the cause of fiction. When the learned guilt to but as ment was not defendant’s punishment, that verdict submitted the form of was jury accordance with statute. act in enabled the sugges- reasonably a It bе that cannot said this verdict, part tion the court return such a report just law made. The view of the plain should men of common sense and is framed for construction. not emasculated refined In State Judge E. 224, 233, 294 Mo. S. W. Hubbs, David said: Blair mandatory provision of a “But absence of punishment, shall assess the statute why may appears good tell no reason the court upon upon agree agreed jury, guilt but unable to jury, response inquiry the’ tell the be received. error that such verdict Is it will inquiry? We what the law is when makes such returning experimented jurors think not. If have on their would motion, such a verdict own just they asked them when what the told learned perfectly to-wit, their verdict law, legal entirely acceptable in that form.” provision
If the court cannot advise the contingencies, actual of this statute in such -in then, through practice, the enactment is fault abortive, no *10 SUPREME OF COURT Sprinkler Stephens. Automatic Co. v. exception Legislature. timely However, as a submitting
not this saved, the action of the properly form of verdict not for review. is here complained motion Other errors are in the new trial, are demurrer without merit. The properly evidence was overruled.' The case fairly upon by tried submitted all instructions questions arising law the case. judgment Bailey, affirmed. G., is concurs. CURIAM : n —The opinion fоregoing PER Higbee, adopted opinion
C., is as the court. All judges except J., of the concur, Walker, absent. AMER-
AUTOMATIC SPRINKLER OF COMPANY v. HENSON M. ICA STEPHENS and ROBERT G. Appellants. MORRIS, Receivers, Two, Division December Assignments:
1. APPEAL: No Abstract Points: Dismissal. mere propositions law, statement of abstract followed a list of authorities, assignment an of errors committed the trial court; comply requirements and does not with of Rule and. comply justify failure to with the rule would a dismissal of the appeal. By Corporation: 2. CONTRACT: Statutory President of Defunct Trus- president, secretary, tee: Preferred Creditor. The who was likewise general treasurer, manager, sole stockholder and director of cor- poration, signed president its name as such to a contract sprinkler system company’s installation of a manu- facturing building, designed prevent fires, should be considered statutory contract, corporation’s its trustee to make such where the charter, knowledge party, expired without the actual of either days previously, parties good nine and both acted in faith and in- pecuniary obligation tended that the contract would be the corporation; sprinkler system having and the installation begun completed, according plans agreed and almost contract-, party and terms of the before either discovered that corporation’s expired, it, party charter had who installed