State v. Miller
| Decision Date | 18 February 1922 |
| Docket Number | No. 23034.,23034. |
| Citation | 292 Mo. 124,237 S.W. 498 |
| Parties | STATE v. MILLER. |
| Court | Missouri Supreme Court |
Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.
Abe miller was convicted of grand larceny, and appeals. Reversed, and remanded for new trial.
On May 6, 1919, an information was filed in the criminal court of Jackson county, Mo., in which it is charged that defendant, Abe Miller, on February 17, 1919, in the county and state aforesaid, did unlawfully and feloniously steal, take and carry away one Ford sedan automobile, of the value of $800, the property of one F. E. Bundy, etc. He was arraigned and entered a plea of not guilty. On March 17, 1920, defendant was tried before a jury, and the latter, on said date, returned into court the following verdict:
The evidence in behalf of respondent tends to show that F. E. Bundy, a resident of Kansas City, Mo., on February 17, 1919, was the owner of a Ford sedan automobile; that about 7 o'clock p. m. on said February 17th said Bundy drove the above car to Westport avenue and Main street in Kansas City, Mo., and parked the same there while he attended a picture show; that he remained at the show about two hours, and then returned to the place where his car had been left, and found that it had been stolen; that he (Bundy) never saw said car any more until about one month later, when he discovered it at the police station, and recognized it as his car, from certain marks which he had made on the pedals. He testified that he bought the car just five days before it disappeared; that when he bought it the pedals would stick at the bottom on the footboard; that he took a heavy monkey-wrench, and bent these pedals, which were made of malleable iron, and in doing this it left scratches on the pedals; that these scratches were on the car when he found it at police headquarters, and the pedals were bent as he had left them, when the scratches were made; that on the evening the car disappeared he put in one rear spark plug that was different from the three Champion spark plugs, which were on the car when he bought it; that, when he recovered the car at police headquarters, the four spark plugs were just as he had left them; that, when he got the car back, the number on it was not the same as when it disappeared; that he bought said car new, and only owned it five days before it was taken; that it had run about 200 miles; that' when it disappeared there were two state license tags on the car, one at the front end and the other at the rear; that between the time of the disappearance and recovery of said car the paint on same had been changed so as to make the body of the car blue; that there was also some lettering put on the car doors after it was taken; that the value of said car when taken was $827; that he did not authorize any one to drive the car away, and had no knowledge that any one was going to drive it away, and did not expect it; that it was his car; that he could not say who took the car.
Mark Stone, paying and receiving teller of the Merchants' Bank, at 17 East Fifth street, Kansas City, Mo., testified, in substance, that he knew defendant; that he kept defendant's account at said bank and had his identification card; that defendant wrote a great many checks on said bank that defendant kept an account in the name of Abe Miller, which was later transferred to the Blue Auto Livery Company; that defendant signed all the checks which were drawn on said bank; that nobody else signed any of said checks; that Respondent's Exhibit 1, shown witness, was signed "Blue Auto Livery Company, by Abraham Miller," and was in the handwriting of defendant; that the body of said exhibit was also in the handwriting of defendant; that no one was authorized to check on the bank but defendant, as to either of said accounts.
J. J. Settle testified in behalf of the state substantially as follows: That he was clerk of the Secretary of State, and had charge of the files in said office relating to applications for automobile licenses; that said Exhibit 1 was an application for an owner's license of a Ford sedan; that it was on file in said office and produced at the trial under a subpœna; that the state license number was 91,198, and the license was issued February 18, 1919; that it was an 1918 model; that the application described it as a new car. (The above application was offered in evidence by the state, but is not set out in the record.) Defendant, as part of Settle's cross-examination, offered in evidence Exhibit A. It was a certificate dated May 24, 1918, issued by the Secretary of State showing the incorporation of "the Blue Auto Livery Company." Counsel for the state admitted the incorporation of said company, and objected to said exhibit, which was excluded by the court.
It was admitted by the state that said company was incorporated before said car was stolen, and that it was still a corporation at time of trial. Thereupon Defendant's Exhibit B was excluded as evidence.
James Orford testified in behalf of the state, in substance, as follows: That he was a detective on the police department of Kansas City, Mo.; that in March, 1919, he recovered a Ford sedan automobile, which was afterwards identified by F. E. Bundy as his car, which had been stolen the month before; that he found said car at Towne's court at Independence avenue; that it was taken to police headquarters at the city hall, located at Fourth and Main streets, Kansas City, Mo.; that said Bundy identified the car as his after seeing it, and said car was turned over to him; that defendant was then arrested by McDermott while the car was at the police station; that he asked defendant where he got the car, when and how he got possession of same; that defendant told him he bought the car from a man, but did not know his name; that he paid around $725 for it, but did not show any bill of sale; that he had no bill of sale; that he bought the car from some man on the street.
On cross-examination witness testified that he found the car in the possession of the chauffeur; that the lettering on the doors of said car read, "Blue Auto Livery Company, Telephone 7500 Main"; that he took defendant to the station, on suspicion that he had the stolen car in his possession; that he thought defendant had something to do with the stolen car; that the chauffeur was arrested, brought to the police station, and afterwards released; that the chauffeur was released as soon as they found Miller; that defendant made no written statement.
On re-examination witness testified that defendant said he bought the car from a man on the street; that the car when recovered bore the motor number 2874245; that it then had a state license number on it, 91,198; that the motor number on the car had the appearance of having been changed. Witness further testified, that he did not know who owned the car.
James McDermott testified in behalf of the state, in substance, as follows: That he arrested defendant on this charge and took him to the police headquarters; that he had been a member of the police force for about five years; that defendant was arrested between Fourteenth and Fifteenth streets on Baltimore avenue, Kansas City, Mo.; that he was arrested within a few hours from the time said car was found in front of Judge Towne's court; that defendant, in the presence of the chief and witness, said that he bought the car from some man on the street; that he was asked to state the name of the man, and said he did not know who he was, and said he got no bill of sale for the car. He said that he paid around $700 for the car, or $725; that when the car was found in possession of the Blue Auto Livery Company's chauffeur on Independence avenue it had on it "Blue Cab" and then "Main 7500." Said witness, in answering the court's question, testified as follows:
"Orford says, `Abe, I want you to tell where you got the car, in front of the chief and McDermott here,' and he says, `I bought it from a man on the street;'" that no written statement was taken from defendant.
Thereupon the state closed its case, and defendant interposed a demurrer to its evidence, which was overruled.
Defendant's evidence:
It was admitted by the state in open court that the Blue Auto Livery Company was organized as a Missouri corporation in 1918, was duly licensed to do business in Missouri, was in good standing as such corporation up to date of trial, and that defendant, Abe Miller, was its president. The court refused to permit defendant to show that he was a minority stockholder in said company, that 10 or 12 other persons were interested in the business, and that each of whom, had as much access to its property as did defendant.
Appellant did not testify as a witness in the case. He lived with his family at 334 Washington boulevard, Kansas City, Kan. Defendant's wife, a son and daughter, as well as three Hebrew friends of defendant, testified that they were present at Yrs. Miller's birthday party on February 17, 1919, the night said car was stolen; that defendant and the above-named parties were at the residence of defendant from about 6 o'clock on February 17, 1919, until after 10 o'clock that night, and that defendant was present during the whole of that time.
This concluded the testimony in the case. Defendant renewed its demurrer to the evidence, which was overruled.
The instructions given and refused, as well as the rulings of the court, will be considered, as far as necessary, in the opinion.
Defendant, in due time, filed his motion for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed by him to this court.
Harry Friedberg, Clarence Wofford, Bert S....
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