State v. Smith

• Decision Date: 20 May 1913
• Citation: 157 S.W. 319
• Parties: STATE v. SMITH.
• Court: Missouri Supreme Court

157 S.W. 319

STATE v. SMITH.

Supreme Court of Missouri, Division No. 2.

May 20, 1913.

1. RECEIVING STOLEN GOODS (§ 7)—INDICTMENT.

An indictment for receiving stolen goods must allege all the essential elements of larceny.

2. RECEIVING STOLEN GOODS (§ 7)—DESCRIPTION OF GOODS STOLEN.

An indictment for receiving stolen goods, alleging the property received as 30,000 San Felice cigars of the value of $1,500 and one case of dry goods of the value of $600, is sufficient.

3. RECEIVING STOLEN GOODS (§ 7)—INDICTMENT—INTENT.

An indictment for receiving stolen goods need not allege that defendant received the goods with intent to deprive the owner of the same, or that defendant knew the goods were stolen from any particular person.

4. RECEIVING STOLEN GOODS (§ 7)—OWNERSHIP—RAILROADS.

A railroad company is the special owner of goods shipped during transit; hence an indictment for receiving goods stolen during transit is sufficient if it alleges ownership in the railroad.

5. WITNESSES (§ 349)—IMPEACHMENT—INFLUENCING PROSECUTION.

A witness offered to show good character of accused may be asked on cross-examination if he did not try to influence the prosecution in defendant's favor.

6. EMBEZZLEMENT (§ 13)—RECEIVING STOLEN GOODS (§ 2)—LARCENY OR EMBEZZLEMENT.

Where a check clerk on a railroad checked certain goods received as short, and then made out false bills of lading to a fictitious person and reshipped the goods to another destination, where an accomplice received them and divided the profit of sale with the check clerk, there is no embezzlement so as to defeat a prosecution for receiving stolen goods against the person receiving such goods knowingly.

7. CRIMINAL LAW (§ 370)—OTHER OFFENSES —RECEIVING STOLEN GOODS.

In a prosecution for receiving stolen goods, evidence that defendant had other stolen goods in his possession is admissible to show guilty knowledge where the court properly limits its reception to that purpose.

8. CRIMINAL LAW (§ 730)—ARGUMENT OF COUNSEL—ACTION OF COURT.

Improper remarks of counsel, which, on objection, were ordered stricken out and the jury directed to disregard, are not cause for reversal when, in view of the frequent motions of counsel for defendant to discharge the jury therefor, coupled with objections to testimony and a rebuke to counsel, the jury could not have been prejudiced.

9. CRIMINAL LAW (§ 823)—INSTRUCTIONS—CURE BY OTHER INSTRUCTIONS.

An instruction in a prosecution for receiving stolen goods, omitting to charge that some one other than defendant must have stolen the goods, and that defendant received them knowing

them to have been stolen, is cured where these elements are charged in another instruction.

10. CRIMINAL LAW (§ 1172)—HARMLESS ERROR—INSTRUCTIONS.

In a prosecution for receiving stolen goods, an instruction incorrectly defining the word "feloniously" as wickedly and against the admonition of law is harmless error, since no definition of the word was necessary.

11. CRIMINAL LAW (§ 781)—STATEMENTS OF DEFENDANT—NECESSITY OF CAUTIONARY INSTRUCTION.

Where verbal statements of defendant are casually made in the course of ordinary conversation and form part of the evidence, and it appears that such statements were made on occasions more or less remote from the time when they were disclosed, a cautionary instruction should be given as a corollary to the instruction upon the weight to be attached to such verbal statements.

12. CRIMINAL LAW (§ 781)—INCRIMINATING STATEMENTS—NECESSITY OF CAUTIONARY INSTRUCTION.

Where there was no evidence in a prosecution for receiving stolen goods that the incriminating statements of defendant, admitted in evidence, were casual or in the course of ordinary conversation, a requested cautionary instruction as to the weight to be given such statements was properly refused.

Appeal from Criminal Court, Jackson County; Edward E. Porterfield, Judge.

Thomas B. Smith was convicted of receiving stolen goods, and he appeals. Affirmed.

The defendant is charged in an information filed by the prosecuting attorney of Jackson county with receiving stolen goods, knowing them to have been stolen from the owner, the Missouri-Pacific Railway Company. A trial before a jury resulted in a verdict of guilty and the assessment of the punishment at four years' imprisonment in the penitentiary. From this sentence defendant appeals. Pending the appeal a stay of execution was granted upon the filing of a satisfactory bond.

In March, 1910, a manufacturer of cigars at Lima, Ohio, shipped 30,000 "San Felice" cigars to Sol H. Cohen, Coffeyville, Kan. This shipment was delivered to the Pennsylvania Railroad at Lima for transportation to St. Louis, whence it was routed via the Missouri-Pacific Railway Company to Coffeyville, Kan. It was duly received at Kansas City, Mo., on March 17, 1910, in a New York Central car, from which it was checked out to a Missouri-Pacific car, which was the Coffeyville car on that date. The Coffeyville car arrived at its destination March 18, 1910, with the seals intact, but it was discovered by Cohen upon being notified of the arrival of the goods that the shipment was short three cases of cigars. Cohen, not being able to secure any trace of same, made a claim therefor to the company for goods lost in transit. Subsequent investigation disclosed that upon the receipt of this shipment at Kansas City it was taken in charge by the local freight agent of the company, who had several assistants. The manner in which the shipments were received by the railway company showed that waybills accompanied each shipment, and when a transfer of freight was to be made from one car to another a check clerk was given the waybill for that car in order to identify the goods and make a record of the transfer. It was the duty of the check clerk to handle the waybills and check out the packages noted thereon; to direct the truckmen which packages were to go to the warehouse and which were to be taken to other cars; and, in case of a transfer to another car, to which particular car the freight was to go.

At the time in question one of the assistants of the local freight agent was a check clerk named Frank Wedow. As check clerk, Wedow had access to the cars and was provided with a paint pot and brush for the marking of freight. Through a corrupt agreement with one Bud Connole, afterwards shown to have been a "police character," Wedow and another check clerk, named McMahon, had been stealing from the railway company by diverting shipments of freight; Wedow, who testified for the state, stated the manner in which these shipments were diverted; the name of the original consignee would be marked out and the freight reconsigned usually to some fictitious persons at Leavenworth, Kan.; the freight would then be checked short on the original bill, a new bill of lading would be issued by the check clerks in duplicate in the name of the fictitious consignee, and the freight shipped out as an original shipment from Kansas City. To give such false bills of lading an appearance of genuineness, Wedow would sign them and place them on what was called the "block stamp," to which he had access in the office. He would then deliver a copy of the fraudulent bill of lading to Bud Connole and file the other in the block office, where another clerk, who prepared the waybills, would take charge of it. Subsequently the freight would be called for at Leavenworth by some one representing the fictitious consignee, and it would be shipped back to Kansas City; in a week or two thereafter Bud Connole would turn over to Wedow the money representing the latter's share in the profits of the unlawful enterprise.

In the manner above described, on March 17, 1910, Wedow stole from the Missouri-Pacific Railway Company three cases of the cigars consigned to Sol H. Cohen and a case of dry goods. The cigars were reconsigned by Wedow in two shipments consisting of one case of cigars and two cases of cigars, respectively, to "J. A. Long, Leavenworth, Kan.," and the case of dry goods to "J. F. Evers, Leavenworth, Kan." Bills of lading were issued by Wedow in duplicate showing shipments of one case of cigars and two cases of cigars, and one case of dry goods, as above stated.

From the loading list of the railway company it was shown there was only one car loaded out of Kansas City, Mo., for Leavenworth, Kan., on March 17, 1910; and on that date the waybills of the company showed that there were shipments of one case of cigars and two cases of cigars and one of dry goods.

The shipments were duly received at Leavenworth on March 18, 1910, and on the following day one J. W. King, an employé of the defendant, presented the fraudulent bills of lading which had been made out by Wedow covering the three cases of cigars and the one case of dry goods. King surrendered the bills of lading to the cashier of the railway company at Leavenworth, received freight receipts to be delivered to the check clerk, and upon delivery of the goods to him signed his own name to these receipts, as well as the names of the fictitious consignees. Upon receiving the cases of cigars and dry goods, King had them transferred from the Missouri-Pacific Railway station to the Burlington Railway station, where he relabeled the four cases "household goods" and billed them out as such over the Burlington Railway to J. W. King, Kansas City, Mo. The freight receipt of the Burlington Company showed that this shipment consisted of four boxes of household goods; it was unloaded at Kansas City on March 23, 1910, and the boxes were afterwards delivered to Mat Francis, a negro driver in the employ of the defendant, who signed a receipt therefor and hauled the goods to the defendant's place of business. During this time defendant, O. H. Pratt, and others were engaged in the business of buying, selling, and storing household goods and furniture, and conducting a general auction house under the names of Walnut Street Auction &...