216 Mo. 359 | Mo. | 1909
At the April term, 1907, of the circuit court of the city of St. Louis, the circuit attorney filed an information charging that defendant jointly with one Lipschitz did in the city of St. Louis on the 30th of March, 1907, feloniously buy, receive and have ten bars of new copper metal of the value of fifty dollars of the goods and chattels of «the Standard Smelting Company, a corporation, then lately before feloniously stolen from said Standard Smelting Company, then and there well knowing the same to have been feloniously stolen, etc.
The defendants were arraigned on May 8, 1907, and put upon their joint trial on the same day. They were each convicted and their punishment assessed at two years in the penitentiary.. On the same day a motion for new trial was filed by defendants, which was afterwards overruled and a motion in arrest was also filed and overruled. And the defendants were each separately sentenced to the penitentiary. The defendant Shapiro alone filed a bill of exceptions and perfected his appeal to this court.
The evidence on the part of the State tended to show that the Standard Smelting Company was a Missouri corporation, with its place of business at number 948 Chouteau avenue, in the city of St. Louis, at which place it kept scrap metals of all kinds and also ingot metals. That on March 29', 1907, there were ingots
The State then introduced another witness, one Harry Flannery, a boy about sixteen years old, who testified that on March 30th he had a transaction with the defendant about copper; that he, witness, and another boy, Eugene Tross, had broken into the foundry of the Standard Smelting Company and stolen ten bars of copper from that company about ten o’clock at night and hid the same in an ash pile in an alley near Twelfth street and Chouteau avenue; that he went to defendant Shapiro’s house the next morning, March 30th, and told him he had some copper and if he had a wagon they could go> down and get it. Defendant said he had no wagon at that time, but he would try and find one. They left the house and went up town, nothing having been said about the price he was to
Eugene Tross also testified that he had helped Flannery steal copper from the Standard Smelting
John O’Brien testified that he helped to load the wagon and saw Flannery ride away with Lipschitz.
At the close of the State’s evidence the defendant requested an instruction for acquittal, which was refused and exceptions saved. On the part of the defendant there was evidence tending to show that he was a man of good character and also evidence tending to show that March 30, 1907, was the conclusion of the Jewish Easter, when services were held in the Jewish place of worship, and that the day was a Jewish holiday; that on that day the defendant Lipschitz came to defendant’s house about 8:30 in the morning and they together went to the Jewish church on Fifteenth and Wash streets and attended the services there, remaining there until noon; that they both accepted an invitation to dinner with a mutual friend, to whose house they went and remained until two o’clock; that no one came to the defendant’s house that morning inquiring for him as testified by Flannery, and that the time embraced by the evidence of alibi covered the time when Flannery and the others claimed to have had the transaction with the defendant and Lipschitz. The defendant testified in his own behalf that on March 30, 1907, he spent the forenoon at the Jewish church and. went at once from there to his friend’s house to dinner where he remained until two o ’clock; denied positively ever having any transaction with Flannery or having bought anything at any time from him; that he saw Flannery for the first time when confronted with him at the police office some time after the alleged transaction and the second time in jail after defendant was confined on this charge. The testimony of the defendant as to the alibi and denying the alleged transac
While defendant was a witness he offered to show that the only horse transaction he and his codefendant had during the month of March, 1907, was on the 13th of that month, some three weeks before the alleged offense, when they purchased a horse and received a bill of sale therefor; he also offered to prove that Red King, the man alluded to by Flannery in the jail and to whom Flannery admitted he first accused defendant, was in jail on the charge of having burglarized defendant’s stable and stealing defendant’s horse; all of which testimony was excluded by the court upon objection by the State. At the close of all of the evidence defendant renewed his motion for an acquittal, which was overruled and he excepted.
It appears from the record that the court read to the jury an instruction as to the testimony of accomplices, which instruction is not set out, but said after-wards to the jury, “I think, gentlemen of the jury, I had better withdraw that instruction number four, which I read to you in regard to the testimony of accomplices; my.attention has been directed to the fact that the instruction is probably incorrect and you will not regard that instruction, which I gave you in regard to the special caution with which the testimony of an accomplice should be received,” and thereupon the said instruction was eliminated from the charge. The defendant then offered an instruction on that point, which was refused upon objection by the State.
I. Before proceeding to the consideration of the errors assigned by the defendant, it is essential to pass upon the proposition advanced by the Attorney-General that the record does not disclose that the motion for new trial was filed within four days after the verdict. This is based upon the recital in the record that “thereupon the said defendants by their attorney filed
II. The principal ground upon which a reversal is sought in this case is that there was an absolute failure of proof of the stealing and the receiving of the articles charged in the information to have been stolen and received. The information specifically described the property stolen from the Standard Smelting Company and afterwards received by the defendant as ‘ ‘ ten bars new copper metal. ’ ’ And it is earnestly insisted that there was no evidence whatever that any new copper metal was stolen from said company on or before the 29th or 30th of March, nor that the defendant received any new copper metal at or about that time. The evidence of Mr. Hess, one of the owners of the Standard Smelting Company, was that eleven ingots of brass were stolen from his company on the 29th or 30th of March, 1907, and that the company had no copper ingots on hand at that time, but the evidence of Flannery and Tross and O’Brien was to the effect that they had stolen ten bars of copper from the premises of the Standard Smelting Company about ten o’clock of the night of the 29th of March, 1907, and hid the same in some ash pile, nest morning sold the same to the defendant, and their evidence clearly tended to show that these copper bars thus
The jury might have concluded that Mr. Hess might have been mistaken as to the company not havr ing any copper bars on hand at the time of the theft in view of the very clear statement of Flannery, Tross and O’Brien that they did steal copper bars and sell them to defendants. This conclusion in no sense militates against our decision in State v. Plant, 209' Mo. 307.
III. There was no error in excluding the bill of sale, evidencing the horse trade on the 13th of March, 1907. Flannery’s evidence as to the horse trade was immaterial and defendant and Lipschitz and Dierkes all testified to the horse transaction on the 13th of March. There was no controversy about the sale. It was irrelevant to the issue and the proof that they bought a horse from Dierkes on the 13th, did not disprove Flannery’s evidence as to the horse trade on
IY. As to the rejection of defendant’s answer to the question, “What, if anything, happened with respect to you and Red King?” no offer was made as to what the testimony would be and it is settled that a judgment will not be reversed on such a showing alone. [Jackson v. Hardin, 83 Mo. 1. c. 187.]
Y. There was likewise no error in withdrawing the instruction cautioning the jury against the testimony of accomplices. The receiver of stolen goods knowing them to be stolen, is guilty of an offense separate and distinct from the larceny of the goods. And the offenders are not accomplices in the meaning of 'the law. [State v. Kauhlman, 152 Mo. 104.]
YI. The second instruction given by the court was in these words: “If you believe and find from all the evidence before you, beyond a reasonable doubt, that the property described in the information, to-wit, ten bars of new copper metal or ten bars of metal of the description mentioned in the evidence, was unlawfully and fraudulently stolen from the possession of the Standard Smelting Company by some person or persons other than the defendants, with the intent on the part of the person or persons so stealing such property to unlawfully and fraudulently convert the same to his or their own use, and to permanently deprive the said Standard Smelting Company of the use of said property, without its consent; that said property was the property of the Standard Smelting Company; that said Standard Smelting Company was then and there a corporation; that after the said property was so stolen as aforesaid, by some
This presents the most serious proposition in the record. Had there been no difference as to the character of the property alleged to have been stolen, and knowingly received by defendants, there would have been no doubt as to the propriety of this instruction, but in view of the testimony of Hess that the bars of metal were brass and that his company had no copper bars on hand at the time of the theft and the evidence of Flannery and Tross that the metal bars were copper, the language of the instruction, directing the jury that if they believed that the property described in the information, to-wit, ten bars of new copper metal, or ten bars of metal of the description mentioned in the evidence, was stolen and that defendants did unlawfully and fraudulently buy and re
It is true that in another instruction the court directed the jury that the defendants were on trial for buying and receiving, knowing them to be stolen, ten bars of new copper metal, on or about March 30, 1907, and upon no other charge of receiving stolen property, and the Attorney-G-eneral insists that in view of this instruction, the jury could not have been misled. But when this instruction is read its obvious purpose was to confine the jury to the transaction of March 30, 1907, and prevent them from finding defendants guilty on proof of the previous thefts and receipt of stolen goods before that time. It did not purport to change the direction of the court that the finding of the theft of either the copper bars described in the information or others mentioned in the evidence, on March 30, 1907, would justify a verdict of guilty. The Constitution of this State, section 22, article 2, provides that “in criminal prosecutions the
While our Statute of Jeofails cures many defects in evidence, it does not permit the State to charge a defendant with stealing specific articles of property of one kind and convict him of stealing other and distinct property. If it did it would be a clear violation of the constitutional provisions above noted. In our opinion the instruction was erroneous and misleading and authorized the jury to find defendant guilty if he bought and received either ten bars of new copper metal or ten bars of brass, mentioned in the evidence of Mr. Hess, the owner of the stolen property which defendant was charged with receiving knowing it to be stolen. The instruction should have been confined to the copper bars and the jury should not have been left to find him guilty if they believed he had purchased and received the ten bars of brass from Flannery, knowing them to be stolen, which we think the instruction permitted, and which the evidence of Hess tended to prove he did do. For the giving of this instruction the judgment must be and is reversed in order that a new trial may be had.