State v. Vinton, 220 Mo. 90

220 Mo. 90 | Mo. | 1909

FOX, J.

This cause is now presented to this court upon appeal by the defendant from a judgment of the circuit court of the city of St. Louis, convicting him of grand larceny.

On March 16, 1907, the circuit attorney filed in the circuit court of the city of St. Louis an information, duly verified, charging defendant with grand larceny. The stolen property consisted of jewelry of the value of fifteen hundred dollars, and was alleged to be the property of J. Bolland Jewelry Company, a corporation. The defendant was duly arraigned and entered his plea of not guilty. On March 22, 1907, this cause was continued to the next term of court; however, on April 15, 1907, both parties announcing ready for trial, a jury was impaneled and sworn and the trial of the cause proceeded. The facts developed upon the trial of this cause were substantially as follows:

The three rings and two brooches charged in the information to have been stolen by defendant were shown by the evidence to have been the property of the J. Bolland Jewelry Company, a corporation, whose place of business was at 513 Locust street, St. Louis, Missouri. The rings and brooches in evidence were identified quite positively by the witnesses on inspection and by means of secret marks registered by the company. The register was in evidence. The total value of the jewelry alleged to have been stolen by defendant was fifteen hundred and seventy-two dollars. The pieces comprising the lot were severally valued by the witnesses at sums ranging from about one hundred and twenty-five to nearly four hundred dollars. The jewelry in evidence was shown to have been part of the J. Bolland Jewelry Company’s window display in February, 1907, and the two brooches and the diamond ring were placed in the window on the morning of February 23, 1907, by the witness Lindsley. At 6 p. m. of that day, when the jewelry used in dressing the window was removed therefrom, these three articles were missing. The two other missing rings seem not to have been in the show window on that day. Search was instituted immediately upon discovery of the loss, but the articles were not found. It was at first suspected that some employee had abstracted the jewelry in question, but that suspicion never took the direction of any particular person.

On March 12, 1907, seventeen days after the loss of the jewelry by the Bolland Company of St. Lonis, defendant was arrested in Cleveland), Ohio.. He was wearing the ring set with rubies and diamonds when arrested. Defendant at first denied having any of the other jewels, but being confronted with one Miller, a pawnbroker, he admitted pawning the diamond brooch at Miller’s establishment in Cleveland, and repaid him twenty-five dollars of the loan, thereby recovering the brooch. Defendant had secured thirty dollars from Miller He, also, first denied that he was staying at the “American House” in Cleveland, but finally admitted that the contrary was true. A search of his room there had already been made, resulting in the discovery and reclamation of the diamond and pearl-studded brooch. After these occurrences, defendant laid claim to the jewelry, saying he had bought it at the World’s fair from one Collins or Collors, and that it belonged to his wife. He added, however, that he now had it and was going to dispose of it. After his arrest he explained placing the pearl brooch between the mattresses in his room by saying it was safer there, and that he might have lost it. Defendant claimed to have been keeping the jewelry prior to visiting Cleveland in a safe deposit vault in St. Louis. When arrested defendant was using as an alias the name of J. D. Hardy.

There was no testimony offered on the part of the defendant, but at the close of the State’s case defendant requested the court to give an instruction, in the nature of a demurrer to the evidence, that the jury be directed to return a verdict of not guilty. This request was refused, to which action of the court defendant preserved his exceptions.

The court fully instructed the jury upon every phase of the case to which the testimony was applicable. It is not essential that the instructions be reproduced. We will give them such attention as may be required during the course of the opinion. The defendant preserved exceptions to the giving of instructions by the court; however, he asked no specific instructions, except the demurrer heretofore referred to, neither did he indicate the particular matters on which he desired additional instructions given.

The cause being submitted to the jury upon the evidence and instructions of the court they returned a verdict finding the defendant guilty as charged, fixing his punishment at imprisonment in the penitentiary for a term of two years. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were entered of record in accordance with the verdict and from this judgment defendant prosecuted this appeal, and the record is now before us for consideration.

OPINION.

I.

The record in this cause discloses numerous assignments of error; however, the brief and argument of learned counsel for appellant is confined principally to the discussion of the question presented as to whether.or not there was any proof of the corpus delicti of, the offense with which appellant stands charged.

We have carefully considered in detail the disclosures of the record and have analyzed all of the evidence. The record discloses numerous objections to the admission of evidence offered by the State, and it is sufficient to say regarding the action of the court in its rulings upon such objections that we have carefully considered the testimony offered, as well as the objections interposed by the defendant, and in our opinion there was no substantial error committed by the court, none at least affecting the substantial rights of the defendant respecting a fair and impartial trial.

II.

This brings us to the consideration of the instructions given by the court. We have carefully examined in detail all of the instructions submitted to the jury, and in our opinion they fully cover every phase of the case to which the testimony was applicable. While counsel for appellant' properly preserved exceptions to the giving of all instructions by the court, yet in his brief and argument he does not undertake to criticise or point out any errors in the instructions as given. It may be said that it was error to omit the qualification in instruction number 2, in reference to good character as one of the elements for the consideration of the jury in passing upon the question as to whether or not such evidence of good character was sufficient to overcome the presumption of guilt by reason of the recent possession of the stolen articles. But as applicable to the facts in this case there was no error in giving the instruction in the form as presented by the court, for the reason that there was no evidence offered by the defendant or the State as to the good character or habits of life of the defendant.

There is no merit in the assignment of error that the court failed to cover all the law by its instructions. There is an entire absence from this record of any suggestions on the part of the defendant to the court as to any subject upon which an instruction was desired; but as before stated, the instructions of the court fully covered every theory of this case to which the testimony had any application.

III.

This leads us to the consideration of the proposition so earnestly and ably presented by counsel for appellant that there is an entire absence of any proof of the corpus delicti.

We are unable to give our assent to the insistence of appellant that there was no proof of the body of this crime. It is well settled that the corpus delicti may be established by purely circumstantial evidence. In 25 Cyc. 120, in the text, it is expressly stated that the corpus delicti may be established by purely circumstantial evidence. There are numerous cases cited supporting the announcement of the rule in the text. [State v. Rodman, 62 Iowa l. c. 459; Colquitt v. State, 61 Ala. l. c. 52; Martin v. State, 125 Ala. l. c. 70; McLain’s Crim. Law, par. 612; 25 Cyc. 120; Territory v. Doyle, 7 Mont. l. c. 249, 250; Roberts and Williams v. State, 61 Ala. 405, 406.]

The testimony in this case shows beyond all controversy that the property designated in the information was stolen from the J. Bolland Jewelry Company, a corporation, doing business in the city of St. Louis. The testimony clearly shows that the jewelry as described in the information was the property of the J. Bolland Jewelry Company, and that these articles were missed from the store, which was located at 513 Locust street, St. Louis, Missouri, on February 23, 1907. Careful search, was made for the missing articles but they could not be found. The matter was then referred to the police department for investigation, and on March 12, 1907, in the city of Cleveland, Ohio, seventeen days after the articles were missed from the store of the jewelry company, the defendant was arrested and when arrested had in his possession and was wearing one of the rings that was missed from the store of the jewelry company. In his room at the hotel in Cleveland, Ohio, one of the brooches charged to have been stolen was found concealed between the mattresses of the bed; another one of the brooches he had pawned at a broker’s shop. It was also shown that he was going under an assumed name and made false and conflicting statements regarding himself, his name, the jewelry and other matters. He claimed to have gotten possession of the jewelry in St. Louis; to have bought it there and to have had it in a safe deposit vault. The defendant also claimed in conversation with some of the witnesses that he had bought this jewelry at the World’s Pair, and that it belonged to his wife. Each of the articles of jewelry traced to the possession of the defendant in Cleveland, Ohio, was fully identified as being the property of the J. Bo 11 and Jewelry Company. On the part of the defendant there was no testimony whatever, either by himself or other witnesses, explanatory of his possession of the articles charged to have been stolen. The testimony offered by the State as to the identification and value of the jewelry was competent and entirely satisfactory. Upon that state of facts we have the well-settled rule of law applicable to the presumption of guilt springing from recent possession of stolen property. The rule applicable to this presumption has been well settled by numerous ¡writers upon circumstantial evidence. It is said: “Since the desire of dishonest gain is the impelling motive to theft and robbery, it naturally follows that the possession of the fruits of crime, recently after it has been committed, affords a strong' and reasonable ground for the presumption that the party in whose possession they are found, was the real offender, unless he can account for such possession in some way consistently with his innocence. The force of this presumption has been recognized from the earliest times; and it is founded on the obvious consideration, that if the possession had been lawfully acquired, the party would be able, at least shortly after its acquisition, to give an account of the manner in which it was obtained; and his unwillingness or inability to afford such explanation is justly regarded as amounting to strong self-condemnatory evidence.” [Wills, Circ. Ev., sec. 4, p. 68; 2 Best on Ev., sec. 321.]

Mr. Burrill on Circumstantial Evidence, page 446, announced the rule “that the possession of property which has been recently stolen raises such a presumption of guilt against the possessor as to throw on him the burden of showing how he came by it, or that he came honestly by it; and, in the event of his failing to do so, to warrant the final inference or conclusive presumption of his being the real offender.”

Along the same line Best on Evidence, sec. 211, states the rule in this language: “Not only is this presumptive evidence of delinquency when coupled with other circumstances, but, even when standing alone, it will in many cases raise a presumption of guilt, sufficient to cast on the accused the onus of showing that he came honestly by the stolen property; and in default of his so doing, it will warrant the jury in convicting him as the thief.”

The rule above as announced by the text-writers has by a long line of decisions met with the approval of this court, and instructions embracing the principles announced by the text-writers have uniformly .been apqiroved by this court. [State v. James, 194 Mo. 268; State v. Barker, 64 Mo. 282; State v. Owens, 79 Mo. 619; State v. Sidney, 74 Mo. 390; State v. Kelly, 73 Mo. l. c. 614-616:]

We have not reached that stage in the administration. of the criminal laws of this State to require positive proof by some eye-witness that the property was taken, and as applicable to the facts in this case, we are unable to conceive of more convincing proof that a larceny had been committed and that defendant was guilty of such larceny, when it was shown that the articles of jewelry left the store of the jewelry company without the consent of the owners and recently thereafter are found in the possession of the defendant, who was going under an assumed name, and who failed to introduce any proof of any character which in any way tended to rebut the presumption of guilt arising from such recent possession. It was not essential, as is very aptly stated by the learned Attorney-General, to require a resolution of the board of directors of the J. Bolland Jewelry Company to show that it did not consent to the taking or disposition of these articles of jewelry.

Appellant complains that a number of salesmen of the jewelry company were not introduced as witnesses to explain what connection they had with the disposition of the articles of jewelry involved in this proceeding. It is a sufficient answer to that complaint to say that when the jewelry was traced to the possession of the defendant explanation should come from him as to how he came into possession of the property, and it was by no means essential to introduce all of the salesmen connected with the jewelry company for the purpose of negativing the fact that they had sold or disposed of the property to anyone. When the property was found in the possession of the defendant explanation as to bis possession rested upon him. It was expressly ruled in Roberts and Williams v. State, 61 Ala. l. c. 406, that as a legal proposition it was not necessary that the State should have introduced all the clerks in the store and proved by them severally that they did not sell the. articles charged to have been stolen.

The ownership and identification of the property were clearly shown by the evidence introduced by the State, and that this property was stolen, under the disclosures of the record.in this cause, is too plain for discussion, and as was said in State v. Kelly, supra, “the possession of property which has been recently stolen raises such a presumption of guilt against the possessor as to throw on him the burden of showing how he came by it, or if he came honestly by it.”

IV.

We have carefully read in detail all the evidence as disclosed by the record, and have carefully considered all the complaints of the appellant directed to the action of the trial court during the progress of the trial, and are unable to discover any substantial error upon the record before us. If the uniform rulings of this court concerning the presumption arising from the recent possession of stolen property are to be longer followed, then we see no escape from the conclusion that the jury were fully warranted in finding the defendant guilty of the larceny charged.

Entertaining these views the judgment of the trial court should be affirmed, and it is so ordered.

All concur.