State v. Caudle
| Decision Date | 11 June 1923 |
| Docket Number | No. 23840.,23840. |
| Citation | 252 S.W. 701,299 Mo. 372 |
| Parties | STATE v. CAUDLE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Greene County; Orin Patterson, Judge.
D. D. Caudle was convicted of the larceny of an automobile, and he appeals. Reversed and remanded for new trial.
C. H. Jackson, of Mountain Grove, and 0. E. Gorman, of Springfield, for appellant.
Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.
Statement.
On November 24, 1920, the prosecuting attorney of Greene county, Mo., filed in the criminal court of said county a verified information, which, without caption and signature, reads as follows:
On December 17, 1920, defendant filed a verified plead in abatement, in which the trial court was asked to abate the information on the ground that said defendant had never been accorded a preliminary examination as the law requires on the identical charge in the information. The trial court, after hearing the evidence submitted in behalf of defendant on said plea in abatement, overruled the same, and, on December 18, 1920, defendant filed a motion to quash said information, for the alleged reason that it did not state facts sufficient to constitute any crime against the laws of the state of Missouri. Said motion to quash the information was likewise overruled. The defendant was duly arraigned and entered his plea of not guilty. He was tried before a jury at the November term, 1920, of said criminal court, and, on the 18th day of December, 1920, the jury returned into said court the following verdict:
Defendant, in due time, filed motions for a new trial and in arrest of judgment, both of which were overruled. Thereafter the court rendered judgment and pronounced sentence on defendant, in accordance with the terms of said verdict, and from the judgment aforesaid he was granted an appeal to this court.
The evidence on behalf of the state tended to show that on the night of June 6, 1920, the Buick automobile of C. M. Portwood, was stolen from his garage in the town of Snyder, in the state of Oklahoma; that the engine number placed on this car by the manufacturer was 5520001; that about the middle of October, 1920, the defendant drove said Buick automobile from Wichita Falls, in the state of Texas, to Springfield, in Greene county, Mo., where it remained, until taken by Clarence Welch, chief of police of said city of Springfield. On October 25, 1920, defendant was arrested on the written complaint of H. L. Lamb, which charged him with the larceny of said car, in the city of Springfield, Mo., on the _____ day of June, 1920. On November 4, 1920, defendant was given it preliminary examination before Thomas R. Gibson, municipal judge and ex officio justice of the peace of the city of Springfield, in the county of Greene and state of Missouri, and the defendant, upon said examination, was held to appear before the criminal court of Greene county aforesaid, to answer said charge. It appeared from the state's evidence that the number of said Buick car was examined at Springfield, and that the number on the engine of said car was found to have been changed, so as to make it appear 520007 instead of 520001, placed thereon by the manufacturer. Snyder, Okl., was approximately 75 miles from Wichita Falls, Tex.
The chief of police testified that defendant, in speaking of Welch's former effort to arrest him, said:
"If you had got me when you was after me you would got me with my breeches down, but I am fixed for you now."
The evidence on behalf of defendant tended to show that he was born in. Wright county, Mo., and lived in Greene county aforesaid for about 26 years, during which time he worked for a railroad; that about the 1st of October 1920, he purchased the automobile in controversy from W. Lindsay Bibb, a practicing lawyer in Wichita Falls, Tex., who claimed to be the owner thereof that on July 13, 1920, B. L. Wirt sold the automobile in question to W. Lindsay Bibb for $1,450, and executed a bill of sale therefor; that on July 13, 1920, said Bibb made application for a license for a Buick automobile with engine number 520007 thereon, and that he operated said car in Wichita Falls until the same was traded to defendant; that defendant had known Bibb as a practicing lawyer for about 5 years, and said that he was a man of good reputation. The defendant testified that he had never been in Snyder, Okl.; that he did not steal the car in question, and did not know the engine number of same had been changed, until he learned it from Chief of Police Welch, at Springfield, Mo.; that in June, 1920, he was in the hotel business at Wichita Falls; that the car claimed by C. M. Portwood as his own was the same car which Bibb operated at Wichita Falls for three months and sold to appellant, who drove it to Springfield, Mo.
The instructions and rulings of the court will be considered, as far as necessary, in the opinion.
Opinion.I. It is contended by appellant that his plea in abatement should have been sustained on the alleged ground that no legal preliminary examination was accorded him under the Constitution and statutes of Missouri.
Springfield is a city of the second class, and Is located in Greene county, Mo. Thos. R. Gibson was the municipal judge and ex officio justice of the peace in said city. He had jurisdiction, within the limits of said city, as to crimes and misdemeanors. Section 8163, R. S. 1919. Under this section of the statute, the chief of police at Springfield was ex officio constable of said city. An affidavit for a state warrant against defendant was made by H. L. Lamb, in which appellant was charged with feloniously stealing and carrying away one Buick automobile, five-passenger, model K-45, all the property of C. M. Portwood, of the value of $1,500, etc. This affidavit was sworn to before said Gibson, as municipal judge and ex officio justice of the peace. A warrant was issued by said Gibson for the arrest of defendant, and pursuant to said warrant the arrest was made, and defendant demanded an examination, which was given him, and he was held for the criminal court of said county. The information, heretofore set out, on which defendant was tried, charges him with having stolen the automobile of C. M. Portwood, in the state of Oklahoma, and also charges that he feloniously stole and carried the same away into Greene county, Mo. The information was sufficient, and authorized the prosecution of defendant in Springfield, Mo., in the same manner as though he had actually stolen the car in said city. Section 3685, R. S. 1919; State v. Mintz, 189 Mo. 268, loc. cit. 289 et seq., 88 S. W. 12; State v. Bennett (Mo. Sup.) 248 S. W. 925.
We are of the opinion that the trial court committed no error in overruling appellant's plea in abatement, nor did it err In overruling his motion to quash the information.
II. Instruction numbered 1, given by the court over the objection of defendant, in respect to recent and unexplained possession of stolen property raising a conclusive presumption of guilt, has been condemned by this court in the following recent cases: State v. Swarens (Mo. Sup.) 241 S. W. 935; State v. Tracy (Mo. Sup.) 243 S. W. loc. cit. 177; State v. Barker (Mo. Sup.) 246 S. W. 909; and State v. Bennett (Mo. Sup.) 248 S. W. loc. cit. 925. The Attorney General confesses error on account of the giving of said instruction.
III. It is contended by appellant that the trial court erred in permitting the prosecuting attorney, in his opening statement to the jury, over the objection of defendant, to state that appellant was In possession of a Hudson automobile at Springfield, which had been stolen, its number changed, and which had no relation to the theft of the Buick automobile, under investigation. The prosecuting attorney said:
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