The State v. Lyle

Decision Date22 December 1922
Citation246 S.W. 883,296 Mo. 427
PartiesTHE STATE v. OLLIE LYLE, Appellant
CourtMissouri Supreme Court

Appeal from Audrain Circuit Court. -- Hon. Ernest S. Gantt, Judge.

Reversed and remanded.

Clarence A. Barnes for appellant.

(1) The court erred in permitting testimony tending to show that a license plate was removed from the truck of Lee Pearson at Vandalia, which was afterwards found upon the Llewellyn car some days later. No connection between defendant, and the removing of the license plate from the Pearson car, and its attachment after its removal, to the Llewellyn car, was shown or attempted to be shown; and until the defendant's connection therewith was so shown such testimony was not admissible on the theory that it tended to show defendant's intention in driving the Llewellyn car. State v. Stetson, 222 S.W. 425; State v Bersch, 276 Mo. 397; State v. Austin, 234 S.W 802; State v. Kolafa, 236 S.W. 302. (2) The court erred in not permitting the defendant to testify with what intention he drove the Llewellyn car from in front of the Baptist church. The defendant was entitled to testify as to his intent. State v. Palmer, 88 Mo. 568, 573; State v. Banks, 73 Mo. 592; State v Fletcher, 190 S.W. 317. (3) The court erred in giving plaitiff's Instruction 1 because: (a) It refers three times to the "information" when the defendant was being prosecuted upon an "amended information." (b) It is misleading in the first paragraph thereof in that it alleges that the defendant and one Aubrey Bybee are jointly charged with the crime of grand larceny; that the defendant alone is on trial pleading "not guilty," emphasizes the plea of the defendant and implies that Bybee either pleaded guilty or had been convicted, and then proceeds to state that persons are equally guilty who act together with a common intent and purpose in the commission of a crime, and the crime so committed by two or more persons jointly is the act or crime of all so acting. (c) The instruction undertakes to direct the jury's attention to Ollie Lyle acting alone or with another, and does not name Bybee as the other person, thereby giving the jury a roving commission to connect the defendant with whoever took the license from the Pearson car and attached it to the Llewellyn car, or with whoever put in a tarpaulin, tools and can found in the Llewellyn car. (d) It did not require the jury to find that the intent of the defendant or "another" if there was another, was a felonious intent. State v. Gochenour, 225 S.W. 690. (e) The instruction fixes the punishment as though the prosecution was under Sec. 3313, R.S. 1919, for grand larceny of an automobile, but injects into it the element of the consent from the owner in violation of Sec. 7607, R.S. 1919, which has a less penalty, or within Sec. 7575, R.S. 1919, which likewise has a less penalty. It permits the jury finding him guilty of the lesser offense, and inflicts punishment for the greater. (f) There was no evidence of any common intent or purpose between the defendant and anyone else in the defendant's driving the Llewellyn car. (4) It was error to give plaintiff's Instruction 3, because it denied defendant the right to an acquittal from lack of evidence against him, and does not correctly define reasonable doubt and nullifies the presumption of defendant's innocence. It is misleading, and transfers the burden to the defendant to prove his innocence. State v. Blue, 136 Mo. 44. (5) The court erred in giving plaintiff's Instruction 4, because it is a comment upon the State's evidence, charges that the statements of defendant proven by the State actually constitute an admission against the defendant, unduly emphasizes portions of his testimony, and directs the jury to disregard what he said for himself, if they do not believe said portions of such statement; when the statement must be taken in its entirety, in order to constitute evidence of an admission, if it be an admission, against the defendant's interest. To delete the alleged admission of any of the statements made in connection therewith that are uncorroborated by defendant's evidence has the effect of depriving the defendant of the presumption of innocence, and of requiring the State to prove him guilty beyond a reasonable doubt, as well as of the idea he intended to convey in the making of such statement. The jury were deprived of the right to believe such statements unless shown on the one hand to be true, or on the other hand to be false, by other evidence in the case. In other words defendant was deprived of any benefit entitled thereunder, unless corroborated. It constitutes an indirect impeachment of defendant's veracity. (6) The court erred in refusing to give defendant's Instruction 8. The defendant was entitled to an instruction on circumstantial evidence, as the court limited proof of the intent with which defendant drove the car to circumstantial evidence. State v. Swarens, 241 S.W. 934.

Jesse W. Barrett, Attorney-General, and R. W. Otto, Assistant Attorney-General, for respondent.

(1) Plaintiff's Instruction 2 is correct in form and substance. Instructions must be read together, and this instruction follows the main instruction and is intended as explanatory of what must be found by the jury. State v. Copeman, 186 Mo. 108, 120. (2) Plaintiff's Instruction 3 properly declares the law. State v. Duncan, 142 Mo. 456, 460; State v. Garrison, 147 Mo. 548, 554. (3) Plaintiff's Instruction 4 properly declares the law. State v. Wisdom, 119 Mo. 539, 552; State v. Howell, 117 Mo. 323; State v. Hopper, 71 Mo. 425. (4) After a careful examination of the record in this case we find that the defendant was asked, "Did you drive the car of Fred W. Llewellyn from the front of the Baptist Church?" Answer: "Yes, sir." Q. "With what intention?" This question was objected to by the State, and the objection was sustained by the court. We think this was error, for a defendant in a criminal case may testify as to the intent with which he did the act charged. State v. Palmer, 88 Mo. 568, 573; State v. Banks, 73 Mo. 592; State v. Fletcher, 190 S.W. 317. (5) And for the further reason that the court refused an instruction on circumstantial evidence. State v. Swarens, 241 S.W. 934. For the court's action in sustaining the State's objection to the question as to the intention of the defendant in taking the car, and for the refusal of the court to give an instruction on circumstantial evidence, we believe that the judgment of the trial court should be reversed.

RAILEY, C. White, C., concurs; Reeves, C., not sitting. David E. Blair, J., dissents in opinion filed.

OPINION

RAILEY, C. --

On May 2, 1921, the Prosecuting Attorney of Audrain County, Missouri, filed, in the circuit court of said county, an information, charging defendants Aubrey Bybee and Ollie Lyle with grand larceny. Thereafter on June 18, 1921, an amended information was filed, in which said defendants were charged with grand larceny in stealing an eight-cylinder Oldsmobile roadster automobile, of the value of $ 1600, in said county, on February 21, 1921. Upon the request of defendant Lyle, a severance was granted. He thereupon filed a motion to quash said amended information, which was overruled. He was then tried before a jury on June 28, 1921, and the following verdict was returned:

"We, the jury, find the defendant guilty of Grand Larceny as charged in the amended Information and we assess his punishment at imprisonment in the State Penitentiary for a term of two years."

Defendant's motions for a new trial and in arrest of judgment having been overruled, he was sentenced, and judgment rendered in due form, in accordance with the terms of said verdict. From said judgment, an appeal was granted appellant to this court.

Mrs. Fred W. Llewellyn testified, in substance, that she was the wife of Fred W. Llewellyn, and lived at 627 Woodlawn, in the city of Mexico; that on February 21, 1921, her husband was the owner of an Oldsmobile roadster automobile; that on the above evening, she drove said car to the Baptist church, where services were being conducted, and parked the same in front of said church; that about five or ten minutes after nine o'clock p. m. she came out of the church, and found her car was gone; that she reported said fact to Messrs. Johnson and Wallace, who were policemen in said city.

Fred W. Llewellyn testified that he was the owner of said automobile, and that the value of same was about $ 1600; that he telephoned to the towns around, as to the loss of said machine, got into a taxi, and went to hunt his car; that he also advertised the loss of the car, in the Post Dispatch and Globe Democrat; that he finally found his car in the ditch -- through information furnished by Wesley Wells, of Bowling Green, Missouri -- about three miles southeast of Bowling Green, in a small, narrow lane; that it had been backed into the ditch, and was in mud up to the axles; that it had to be dug out of the mud; that when his wife drove said car to the Baptist church, it had thereon a 1920 license plate; that when he found the car in the ditch, it had thereon a 1921 license plate; that the blocks of said car were burned out; that he took the car to Bowling Green, had it fixed, and brought it home; that when he found the car in the ditch, it had therein a piece of canvas, a Spanner wrench, a screwdriver, a pair of pliers, and a five-gallon tin can; that none of the above items of personal property were in the car when his wife drove it to the church; that the can was empty; that none of the above items belonged to him; that he wrote to the Secretary of State, and received a telegram from him, which was excluded as evidence by the court.

Lee Pearson testified, in substance, that he...

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