189 Mo. 268 | Mo. | 1905
The information in this case was filed in the circuit court of the city of St. Louis by the circuit attorney of St. Louis, on January 26, 1904, charging the defendant, Samuel Mintz, together with Alexander Zellinger, Jacob Zeidell and William Wiseman, with stealing one hundred and forty-six cases of shoes from the Cleveland, Cincinnati, Chicago & St. Louis (commonly called the “Big Four”) Railroad Company, of the aggregate value of eighteen hundred dollars.
The information contains two counts, and the of7 fense was thus charged:
'“Now comes Joseph W. Folk, circuit attorney within and for the Eighth Judicial Circuit of the State of Missouri, aforesaid, and upon his official oath information makes as follows:
“That Alexander Zellinger, Jacob Zeidell, Samuel Mintz and William Wiseman at the city of St. Louis aforesaid, on or about the twelth day of September, in the year one thousand nine hundred and threé, did feloniously steal, take and carry away from the possession, of the Cleveland, Cincinnati, Chicago & St. Louis (commonly called the “Big Four”) Railroad Company, a corporation, one hundred and forty-six cases and one thousand seven hundred and ninety-nine pairs of shoes contained in said cases, all of the aggregate value of eighteen hundred dollars, and all the goods and personal property of the said Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, with the intent then and there feloniously to deprive the owner of the said goods and personal property of the use thereof, and to convert the same to their own use, without the consent of the owner; against the peace and dignity of the State.
“And the said Joseph W. Folk, circuit attorney within and for the Eighth Judicial Circuit of the State of Missouri, aforesaid, upon his official oath aforesaid, further information makes, as follows:
“That Alexander Zellinger, Jacob Zeidell, Samuel Mintz and William Wiseman, at the city of St. Louis, aforesaid, on or about the twelfth day of September in the year one thousand nine hundred and three, did fel*272 oniously and fraudulently buy, receive, have and take into their possession one hundred and forty-six cases and one thousand seven hundred and ninety-nine pairs of shoes, contained in said cases, all of the aggregate value of eighteen hundred dollars, and all the goods and personal property of the Cleveland, Cincinnati, Chicago & St. Louis (commonly called the “Big Pour”) Railroad Company, a corporation, which said goods and personal property had then lately before been feloniously stolen, taken and carried away from the possession of the said Cleveland, Cincinnati, Chicago & St. Louis Railroad Company; they, the said Alexander Zellinger, Jacob Zeidell, Samuel Mintz and William Wiseman, then and there well knowing the said goods and personal property to have been so feloniously stolen, taken and carried away, as aforesaid; with the intent on the part of the said Alexander Zellingfer, Jacob Zeidell, Samuel Mintz and William Wise-man, then and there feloniously to deprive the owner of the said goods and personal property of the use thereof and to convert the same to their own use, without the consent of the owner; against the peace and dignity of the State.
“Jos. W. Polk,
* ‘ Circuit Attorney.
“State of Missouri, ) >ss. “City of St. Louis. J
“Being duly sworn upon his oath says, that the statements contained in the foregoing information are true.
“William: Cassew.
‘ ‘ Sworn to and subscribed before me this 25th day of January, A. D. 1904.
‘‘ Casper J. Wole,
“Clerk of the circuit court, city of St. Louis, for criminal causes.”
The freight depot of the Big Pour Railroad for the reception and delivery of freight for the city of St. Louis, Missouri, is situated in the city of East St. Louis, Illinois, and it is the custom of merchants in St. Louis to give the work of hauling goods from this and other railroads to transfer companies which contract to haul freight for .the merchants from East St. Louis to St. Louis, crossing’the river by bridge or ferry, as the case may be.
On or about the 10th or 11th day of September, 1903, there was received, among other freight, at the Big Four depot, one hundred-and. forty-six cases of shoes consigned to the Geiseeke-D ’Oencli-Hays Shoe Company, a firm of merchants in the city of St. Louis. It appears that in the course of business of the Big Pour Company, the freight received for delivery is checked out of the cars on what is called a “blind tally,” that is, the “checker” takes a blank sheet provided and as the goods come out of the car enters the items on the “blind tally,” and this “blind tally” is turned over to other employees and by them checked against the waybills to ascertain the correctness of the list of goods. Prom the waybills are then prepared delivery tickets, giving the name of the consignor and consignee, and the location of the goods in the warehouse of the Big Pour Company, so that when the goods are called for the delivery clerk will know the class and character of the goods called for and their location in the warehouse.
A person calling for goods is referred to the delivery clerk, who refers to his delivery tickets and turns the tickets over to a person known as a “picker.” The “picker” directs the party to whom the goods are to be delivered to place his wagon in front of the door nearest to the location, and the goods are
On that morning there was what was known as a ‘1 rush order ’ ’ in the Big Four depot for the delivery of a box of brass faucets for the Blanke Company, a concern for which the Mound City Transfer Company also did the hauling, and when Rector appeared Morcom proceeded to make up a load of freight for him to be hauled by the Mound City Transfer Company.
Morcom produced the delivery tickets for the Blanke orders and for the Giesecke order and handed them to Oassen, a “picker,” and told him to give the goods called for by the tickets. As to the custom of delivery Morcom testified that when a man came in, whether an employee of the Mound City Transfer Company or any other, and asked for a load he would turn the sheets over to his men and instruct them how to load the wagon. On this morning- when Rector called for one particular shipment of shoes, he had a rush order from Blanke for one box of brass faucets, and told him he would have to take those goods, then he would deliver him the shoes.
The testimony of other employees of the Big Pour company shows that they knew Rector was a driver for the Mound City company and that the box of brass for Blahke and the shoes for Giesecke were delivered to Rector in the regular course of business; that the steps taken by them were such as are taken in the usual course of business when dealing with the delivery of freight; that it was the custom of the transfer company to give the number of the wagon hauling the goods; that Rector gave the number of his wagon as 105. That number was given by Rector, who accounted for his wagon not being the regular wagon of the Mound City company by stating that his regular wagon had broken down.
It appears from the evidence that the Giesecke company have all the cases, in which shoes are manufactured for them, marked with what is known as the “Key Brand.”
Rector testified that prior to about the 12th day of August, 1903, he .was employed by the Mount City
“Q. What occurred then? A. He told me he would meet me the other side of the river. I didn’t see Sam Mintz there, so I went on across; there was an old fellow gets on the wagon with me, I don’t know his name; he asked me to ride across; I told him all right. He rode across the bridge to the stairs on the far side, the old fellow did, and and he gets oft and'walks down the stairs — he works at the Big Four, I think. After I passed the stairs Sam Mintz got over, he overhauled tbe wagon, rode about half way down .the entrance to*277 the bridge. Q. Was that the first time you saw him? A. Since I left the saloon, yes, sir. So Sam gets on there and he says, ‘You drive down to the Big Four, back into door No. 8 and ask for a load of shoes,’ and he says,‘You will get them.’ I told him all right. As he got off the wagon he said: ‘ Stop down at the corner and sweep the coal dust off;’ there was some coal on the wagon. I drove down there, went to the saloon, got a broom, and by that time Sam was there too. Sam went in the saloon before we swept the wagon, had a couple of drinks; I went out and swept the wagon off, came back and had a couple more; I was feeling pretty good then. So I drove down to door No. 8, backed in, met the foreman or delivering clerk; I said, ‘I am after a load of shoes.’ He said, ‘where is your wagon?’ I said ‘No. 8 door;’ he said, ‘They are just opposite here;’ I said ‘All right;’ he said, ‘There is a box of faucets to go over with that load.’ I said, ‘I ain’t sent for no faucets.’ He said, ‘You have got to take them, that settles it.’ So we commenced loading shoes and he brought the faucets out and says: ‘Take this box and load it first;’ I said, ‘I will not do it.’ He said, ‘You have got to take that now, that settles it.’ So he put these men to loading my wagon, three truckers, three pickers, piled the shoes out faster than I could load up. Finally 1 got loaded up. He wanted me to sign two tickets — three tickets rather, and-Mintz told me on the bridge to sign the name ‘Reed,’ not to sign my name for the shoes, but I supposed it to be all right; so I signed that box of faucets in the name of Reed; signed the whole business. Q. Was there anything said about the wagon? A. Yes, they asked what was the number of my wagon — they always do that, that is customary — I told them 105. Sam told me that was his number, the wagon goes by that number, that the other wagon was broken down. ’ ’
After driving from the Big Four depot, Rector and the young man who Mintz told him would be his
Rector testified that after the shoes and the brass faucets were unloaded the team and wagon were turned over to the young man, and that he met Mintz who gave him twenty-five dollars for his day’s work. That subsequently Mintz gave him other money, trying to get Rector to agree to run away; that Mintz kept promising to give him enough money so he could leave the country, but he failed to produce the agreed amount and finally Rector was arrested on or about 17th of September.
The testimony shows that one Zeidell was sent for to buy part of the shoos, and that on Saturday evening, the day the shoes were placed in Zellinger’s store, Zellinger gave Zeidell $100 which.was turned over that same evening to Mintz. On Sunday, Zeidell testified, he was sent for and told to get ordinary dry goods boxes and pack the shoes in. That he and Zellinger, Zellinger’s clerk and the young man who brought the shoes on Saturday opened the cases and packed the shoes, or rather dumped then in large dry goods boxes. That while they were at work at this, $156 worth, or what was sold to one Volker for that amount, were packed up and sent to this man, said to be from Texas. Defendant was present when the goods were repacked, and during the time the sale was being made to the merchant from Texas. That on Monday seven dry goods boxes of these shoes were loaded on an express wagon and taken to 7616 South Broadway to the home of a man by the name of Isaac Seifer, and put in a shed
The testimony of the police officers shows that two or three of the original cases were found in Zellinger’s place; that in his basement or cellar were found broken boxes with the “Key Brand,” showing’ that they were boxes in which Giesecke, shoes had been shipped, and Zellinger testified that the shoes produced in court were like the ones delivered to him by the young man, and which Mintz told him to take.
Zellinger testified that Mintz told him to make the sale to Yolker for $156, and that on Monday night Mintz asked Zellinger to give him what money he had, and that he gave Mintz $90.
* On or about Thursday of that week the arrests were made and the shoes recovered. The identification of the shoes was complete, not only from the testimony of the witnesses, but from the invoice sent by the factory which made them, when compared with the shoes themselves.
At the close of the evidence for the State, the defendant asked an instruction in the nature of a demurrer, which the court refused.
Thereupon, the defendant rested his case and the State dismissed as to the second count of the information.
At the close of all the evidence the court instructed the jury fully covering every feature of the case to which the testimony was applicable. The case was submitted to the jury' and they returned a verdict of guilty assessing his punishment at imprisonment in the penitentiary for a term of three years.
Sentence and judgment was entered in accordance with the verdict, from which judgment the defendant prosecuted this appeal, and the cause is now before us for review.
The record in this case presents three legal propositions for consideration:
1. It is insisted that the testimony in this canse does not establish a larceny of the property in the sister State, but simply shows the obtaining of goods under false pretenses, and therefore defendant’s offense does not fall within that provision of section 2362, Revised Statutes 1899; hence, he was improperly convicted under that section.
2. That the indictment upon which this prosecution is predicated is insufficient by reason of the omission of any allegation charging that the property was stolen in the State of Illinois and brought to this State.
3. The correctness of the instructions given by the court are challenged, and error is also assigned upon the refusal of the court to give instructions requested by defendant.
Section 2362, Revised Statutes 1899, upon which this prosecution is based, provides: “Every person who shall steal, or obtain by robbery, the property of another in any other State or country, and shall bring the same into this State, may be convicted and punished for larceny in the same manner as if such property had been feloniously stolen or taken in this State, and in any such case the larceny may be charged to have been committed, and every person may be indicted and punished, in any county into or through which such stolen property shall have been brought.”
At the very inception of the consideration of the proposition presented to us for solution, it is not inappropriate to say that learned counsel for appellant has said everything that can be urged in support of the contentions presented.
It must be conceded that it is essential, to constitute the offense denounced by the statute, that the property in the sister State must be stolen or obtained
It is insisted by appellant tbat tbe proof in this case is insufficient to establish larceny;- bence, tbat if it shows anything, it was tbe obtaining of property under false pretenses. Tbe distinction between larceny and obtaining goods under false pretenses was carefully marked in tbe recent cases of State v. Anderson, 186 Mo. 25; State v. Buck, 186 Mo. 15; and State v. Copeman, 186 Mo. 108. A fair and reasonable application of tbe rule announced in those cases must furnish tbe solution of tbe first proposition presented in this case.
As applicable to this first proposition tbe facts are undisputed and may thus be briefly stated: Rector, who obtained tbe goods from tbe railroad company, bad been for a long time in tbe employ of tbe transfer company tbat usually received and delivered tbe freight from tbe Big Four depot consigned to Giesecke-D ’Oench-Hays Shoe Company. There was little or no conversation between tbe employees of tbe railroad company and Rector in respect to getting tbe cases of shoes; Rector made no representation and it is apparent tbat, be having formerly worked for tbe transfer company, it was simply taken for granted tbat be was authorized to receive tbe goods for' tbe purpose of delivery to tbe shoe company in tbe city of St. Louis, and tbe goods were delivered to him under those circumstances.
It is insisted tbat Rector having been previously engaged as a driver for tbe transfer company which was authorized to receive and deliver goods to tbe shoe
It is unnecessary to express an opinion upon the correctness or incorrectness of this insistence by the appellant. Courts of high standing have treated conduct similar to that of Rector as amounting to the practice of false pretenses. This contention may be conceded, and still we are quite distant from the solution of the vital and overshadowing question as to whether the defendant, under the facts disclosed at the trial, was guilty of larceny or obtaining goods under false pretenses.
The railroad company was in possession of the property charged to have been stolen, and this possession constitutes a sufficient ownership as against the wrongdoer. [State v. Waghalter, 177 Mo. 676; 3 Greenleaf’s Evidence (16 Ed.), sec 161.]
In State v. Anderson, and State v. Buck, supra, the distinction between the offenses of obtaining goods under false pretenses and larceny has been clearly drawn. It can serve no useful purpose, nor can it add anything to the legal literature, to burden this opinion with a repetition of what was said in those cases; hence, we must be content with a simple reference to the general rules marking the distinction in those two
The authorities uniformly recognize the narrow margin between a case of larceny and where the property has been obtained by false pretenses and fully appreciate the nicety as well as the importance of the distinction.
In the treatment of the distinction between larceny and obtaining property under false pretenses, the authorities employ different terms in giving expression to the rules governing the distinction, hut the same conclusion is reached and the general rule is now settled and fully recognized that where property is delivered with, the intention of parting with it altogether,' that is, by giving the title as well as the possession, the offense is that of false pretenses. On the other hand, if the possession is parted with, and not the right of property, the offense is that of larceny. In Commonwealth v. Barry, 124 Mass. 325, the rule is thus briefly stated: “If the possession is fraudulently obtained, with intent on the part of the person obtaining it at the time he receives .it, to convert the same to his own use, and the person parting with it intends ■ to part with his possession merely, and not with his title to the property, the offense is larceny. ’ ’ In Murphy v. People, 104 Ill. 528, the same rule is announced, with a mere change of expression. It was said: “If the owner of the goods alleged to have been stolen parts with both the possession and the title to the goods to the alleged thief, then neither the taking nor the conversion is felonious. It can hut amount to fraud. It is obtaining goods under false pretenses.” To the same effect is People v. Morse, 99 N. Y. 662; Stinson v. People, 43 Ill. 397; 2 Arch. Crim. Prac. & Plead., 372; 2 Clark & Marshall, Crimes, 710.
It will he observed that all of those cases are fully discussed in the recent cases of State v. Anderson, and State v. Buck, in which the rule as announced fully
It is ably and earnestly urged by counsel for appellant that, under the line of authorities as indicated, the facts developed in this case simply constitute the offense of obtaining property under false pretenses. We are unable to give our assent to this contention. It is urged by appellant that the railroad company had a special property in the goods delivered to Rector and that in delivering the goods to him it surrendered its entire title or special ownership, and hence the case should fall within the rule of the cases herein referred to, that where an owner voluntarily parts with his title to the property, and not simply the possession, the offense is that of false pretenses. In our opinion the argument of counsel for appellant is predicated upon an erroneous conception of the relation of the railroad company and Rector to the property charged to have been stolen. While it may be said that the railroad company had such a special interest in this property as to make the stealing from it larceny, yet their dominion over the property was far from being absolute. The railroad company is a common carrier; they had carried these goods to their place of destination and had the possession of them for a limited purpose — that was the delivery to the consignee or his authorized agent. The appearance of Rector, who had formerly been in the employ of the transfer company, in his usual way with his wagon,
There is a'well-recognized distinction between obtaining possession of property from the absolute owner by false and fraudulent representations and the obtaining of property from other persons who simply have the custody and possession of the property as the agent or servant of the owner. Mr. Greenleaf in treating of this subject makes clear this distinction. In discussing this proposition he says: “A felonious intent may be proved by evidence that the goods were obtained from the owner by stratagem, artifice or fraud. But here an important distinction is to be observed between the crime of larceny, and that of obtaining goods by false pretenses. For supposing that the fraudulent means used by the prisoner to obtain possession of the goods were the same in two separate cases, but in the one case the owner intended to part with his property absolutely, and to convey it to the prisoner, but in the other he intended only to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself; the latter case alone would amount to the crime of larceny, the former constitut
Mr. Wharton, in his recognized standard work upon Criminal Law, fully demonstrates this proposition. He said in his text: “Suppose A. goes to B. and says, 'I am 0., sell me these goods,’ and B. delivers the goods to A., believing A. to be 0., this being an essential incident of the contract; does any property pass to A.? The better view is in the negative, there being no contract between A. and B. If this he correct, then it is larceny in A. to take goods on this false personation; though there are authorities to the effect that the case is not larceny but false pretenses. If the pretense be, not false personation, but false statement of means, then, as there is a contract of sale, tlie case is false pretense and not larceny. And where A. says, ‘I am sent by C. to carry the goods to him, ’ which is false; and thus obtains only possession of the goods;. this is larceny in cases in which B. intends to part only with the possession of the goods to A. But here we encounter a subordinate distinction. Suppose A., pretending to be 0., goes to B. and fraudulently obtains from B. certain goods of C., which are in B. ’s hands as bailee. Is
In Harris v. State, 81 Ga. 758, the rule is clearly and correctly announced as to the delivery of possession for a particular purpose. The Supreme Court of Georgia in discussing the Harris case which, in some of its features, is very similar to. the case at bar, thus stated the law: “The rule is, that ‘if one, meaning to steal another’s goods, fraudulently prevails on the latter to deliver them to him, under the understanding that the propérty in them is to pass, he commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable cheat. But if, with the like intent, he fraudulently gets leave to take possession only, and takes and converts the whole to himself, he becomes guilty of larceny; because, while
In State v. Lindenthall, 5 Rich. L. R. (S. C.) 237, it was ruled that a person who obtained the possession of goods by consent of the owner for one purpose, such as hiring or carrying, with the intent to steal, and consummated that intention partly or entirely by converting the goods to Ms own use, is beyond doubt guilty of larceny.
In the case at bar Rector obtained the goods from the railroad company for a particular purpose, that of delivery to the shoe company; he acquired"no sort of title or ownership to the property, but a mere bare possession. The authority of the railroad company in respect to the goods in. dispute was limited; they were only authorized to deliver the possession to the consignee. or its authorized agents.
in support of the contention by appellant we are cited to the case of State v. Kube, 20 Wis. 217. The facts in that case somewhat distinguish it from the case at bar. In that ease an express agent had a package for Christiana Kube; John L. Kube, her husband, claimed the package for his wife and by false representations induced the agent to believe that a mistake was made in the address of the package and thereby secured the absolute delivery of it to him for his wife. It will be observed that the delivery to the defendant,.
c This brings us to the consideration of the second proposition, that the indictment is insufficient to support the judgment of conviction. This contention is predicated upon the failure of the indictment to charge that the property was stolen in Illinois and.brought into this State. Section 2362 expressly provides: “In any such case the larceny may be charged to have been
This court at a very early period of its organization had in judgment the validity of this statute in the case of Hemmaker v. State, 12 Mo. 453. Napton, J., in that case, after reviewing a number of causes in other jurisdictions, in which it was held that offenses of this character committed in other States or foreign countries were not cognizable in the courts of the State to which the property had been brought, said: “We are not under the necessity of deciding the question which these cases present. Our statue was obviously intended to punish offenses committed against our criminal laws, and not those which were commited without jurisdiction of the State. If the Legislature think it expedient to declare that a person who is guilty of grand larceny in another State or country and brings within our jurisdiction the stolen goods, shall be considered as guilty of grand larceny, here, it is clearly within their constitutional power to make such enactment. In the determination of the character of the offense there is no necessity for inquiring what may be larceny under the laws .of the country where the offense was committed. The Legislature punishes the offense committed in this State by bringing the stolen property into it, and in doing so, they merely cod
In State v. Williams, 35 Mo. l. c. 232 and 233, this court again made reference to this statute and very briefly thus stated its conclusions: “Whether the crime of larceny committed in one State can be transplanted with the goods into another State, so as to become an offense against and punishable in the latter State, is a mooted question, and has given rise to many conflicting opinions; but no such question can arise in this case, for it is expressly authorized by the 3d sec. of the 9th art. of our act relating to crimes and punishments (R. S. 1855, p. 637).”
Again, in State v. Butler, 67 Mo. 59, the validity of this statute was called in question and its validity was maintained^ and the conclusion as reached in the case of Hemmaker v. State, supra, was fully- approved. In all three of these cases in which there was a conviction by the trial court the judgments were affirmed, and we have the original records now before us, and in none of them do the allegations contended for by appellant, that the property was stolen in another State and brought into this State, appear in the indictment.
In the disposition of this proposition we might be content by simply announcing that the cases to which we refer must be treated as decisive of the question now under discussion; however, it may be further said that in State v. Butler, supra, the case of People v. Williams, 24 Mich. 156, is cited with approval, and gives full support to the correctness of the conclusions announced by this court upon this statute. The provisions of the Michigan statute upon this subject were substantially the same as ours. Judge Cooley, in that case, responding to the challenge to the validity of the
It is very earnestly urged and ably presented that the failure to charge in the indictment that theproperty was stolen in Illinois and brought to this State is misleading to the defendant and does not comply with the provision of the Constitution which guarantees to him the right to know the nature and character of the charge preferred against him. In response to this argument
This brings us to the only remaining proposition presented to our consideration, that is, the refusal of the court to instruct the jury that if ‘ ‘ they believe and find from the evidence that the witness Eector had no intention to take, steal and carry away the property when he obtained it, then he was not guilty of larceny, nor was the defendant guilty of larceny. ’ ’
Upon the facts developed at the trial of this case we have reached the conclusion that there was no error in the refusal of this request. The testimony as introduced by the State is undisputed that the witness Eector was the instrument selected by the defendant to accomplish his fraudulent and felonious intent of stealing the property as charged in the information and permanently depriving the owner of it. He furnished the wagon; directed Eector how to proceed in order to obtain this property, and upon the testimony, as disclosed by the record, the felonious intent and design entertained by the defendant in this case is made too clear for discussion. Whatever was done by Eector. must be treated as the act of this defendant, and even though Hector’s mind was inactive and he was ignorant of the purposes of his act, if defendant Mintz di
We have carefully considered the instructions given by the court upon which this cause was submitted to the jury. They fully cover every feature of this case to which the testimony was applicable, and finding no reversible error upon the record, as presented, the judgment of the trial court should be affirmed, and it is so ordered.