Sate v. Tracy

• Citation: 294 Mo. 372,243 S.W. 173
• Decision Date: 08 June 1922
• Docket Number: No. 23366.,23366.
• Parties: SATE v. TRACY.
• Court: United States State Supreme Court of Missouri

243 S.W. 173

294 Mo. 372

SATE v. TRACY.

No. 23366.

Supreme Court of Missouri, Division No. 2.

June 8, 1922.

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

Joe Tracy was convicted of burglary and larceny, and he appeals. Reversed and remanded.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Special Asst. Atty. Gen., for the State.

HIGBEE, P. J.

The indictment charges that the defendant Joe Tracy, and Charles Murphy, on January 20, 1920, broke into a certain building, the bonded warehouse of the Blue Valley Distillery Company, a corporation, located between Thirty-Ninth and Fortieth streets, on Holden avenue, Kansas City, Mo., and stole 17 barrels of whisky of the value of $8,500 of the goods and property of the Blue Valley Distillery Company, against the peace and dignity of the state.

The defendant was arraigned on April 15, 1920, pleaded not guilty, and entered into a recognizance in the sum of $5,000. On May 29, the defendant was granted a severance, and the trial was set for June 14. On June 2, the defendant applied for a continuance, which was overruled, and the cause set for trial on June 21, on which day the trial was again set for July 12. When the case was called for trial on July 12, the defendant forfeited his recognizance, and scire facial was issued, returnable on the first day of the next term of court, being September 6, 1920. On. December 13, the defendant again applied for a continuance, on account of the absence of witnesses, which was overruled, and the case went to trial before a jury on the following day, resulting in a verdict of guilty of burglary and larceny, for which the punishment was assessed at two years in the penitentiary for the burglary and an additional two years for larceny: Motions for new trial and in arrest were filed and overruled. The defendant was thereupon sentenced in accordance with the verdict, and an appeal granted; the defendant being allowed to prosecute his appeal as a poor person.

The testimony for the state is thus summarized in the statement of the learned Attorney General:

"The Blue Valley Distillery Company, a holding corporation of the S. Hirsch Distillery Company of Kansas City, Mo., was the owner and in possession of 17 barrels of whisky on January 20, 1920, which was contained in a government bonded warehouse located at Leeds, Jackson county, Mo.

"One W. S. Clark was employed by the Blue Valley Distillery Company as a night watchman, and was on duty on the night of January 19, 1920. About 1 or 1:30 in the morning while he was seated in the office, knocks were heard on the door, and upon opening the door two men covered him with pistols and commanded him to put up his hands. This he did, while one man took his pistol from him. These men then asked where the whisky and the key were, and were told it was in the bonded warehouse, and only the government gauger carried the key. They then proceeded to break the lock and force the door open, and directed Clark to show them where the whisky was. It was stored on the third floor. The three went up and located the whisky and then returned and went through the building to the east end on Holden avenue, and there were joined by four more men, who were waiting. Two of the four were defendant, Joe Tracy, and codefendant, Charles Murphy. They then whistled, and a truck drove up and stopped for loading.

"The party of six men took Clark and went into the warehouse; defendant being one of the six. After reaching the third floor witness was blindfolded, the defendant holding his head while another man put on the blind, which was left on about 1½ hours. Clark heard one man ask how many barrels they had down, and another replied that they had 12. The other then said that they must have 17, and took some more barrels down. The barrels were taken down on an elevator, which witness could hear running and could hear them rolling the barrels and their conversation. The blindfold was then removed, and Clark was taken down to the truck and required to help load the balance of the barrels. He saw five men with revolvers, and Tracy and Murphy had shotguns after the truck pulled out.

"Tracy told witness that they were going to take him for a ride, and he and Murphy required witness to get into the front seat of a touring car, which was waiting at Thirty-Ninth street, and Tracy and Murphy took the rear seat. They drove him around on various streets for some time, and finally let him out at Fifty-Seventh and Troost avenue, and told him to go down the street and not look back. However, witness did look back when about a block away and saw the car turn around and go south from whence they came. Tracy said when leaving for the drive: `We have looked this place over. I have been to this place twice and looked it over, and we aimed to get here sooner, but we were detained.' The fair market value of the whisky was shown to be $8,000.

"It was shown by Capt. John J. Ennis, a police captain in charge of Police Station No. 9, Kansas City, Mo., on January 20, 1920, that he took seven police officers and went to 2807 East Forty-Fifth street about 10 o'clock a. m., and went into the house and found defendant, Tracy, and Charles Murphy, but no one else. They also found 17 barrels of whisky in the basement, one of which had been broken open. Both men were intoxicated. The whisky was turned over to Mr. McNutt for the government. The building was a cottage and defendants were in the living room thereof. The policemen saw there a Winchester revolver, 30-30, and a pop shotgun, and a .38 Colt's revolver. The defendants were arrested and taken to Police Station No. 9. Both defendants refused to talk. The officers watched the house from the morning of the 20th to the morning of the 22d, and investigated who lived there, but found no one except the defendants.

"The whisky was identified by R. J. McNutt, the United States government storekeeper and gauger stationed at Kansas City, and assigned to the Blue Valley Distillery Company at Leeds. He had the key to its bonded warehouse. He saw the whisky at the house where it and defendants were found, and identified it by checking and comparing the serial numbers on the barrels, the numbers, stamps, and date of inspection, with the records of the barrels in the Revenue Department and by reweighing them. McNutt stated that these barrels were in the bonded warehouse of the Blue Valley Distillery Company prior to January 20, 1920.

"Evidence on behalf of the defendant tended to prove the following:

"That defendant, Joe Tracy, came into a pool hall at 802 Main street, Kansas City, Mo., owned and operated by Claud Higgs and Frank Fox, on the night of January 19, 1920, at about 9:30, and remained there until some time after 10 o'clock, when Claud Higgs and Tracy went to the Antlers Hotel and saw one Jack Sullivan. They met Sullivan there in the lobby of the hotel, and talked with him for some time.

"While there one Sam Dana, a constable, and Frank Kane came into the lobby, and joined them about 12 o'clock, and all remained there until about 2 a. m. While there a Mr. Brennon came in, accompanied by a little fellow said to be a jockey. During this time a stranger came in, and offered to sell some gin very cheaply. Tracy and Constable Dana agreed to buy a few cases on the next day. From the Antlers defendant, Tracy, and Higgs went to Ninth and Main street, to a restaurant. They there found Fox taking lunch, and Tracy and Higgs took lunch and Higgs went upstairs in the Westgate Hotel at 2 and went to bed. Higgs first heard of defendant's arrest the next evening, when he saw it in the newspapers.

"Tracy lived at 401 Broadway at this time. Higgs called there the day before to see Tracy's wife, who was sick, and found Tracy there waiting on her.

"In the above statement with reference to the time and place of meeting Tracy was corroborated by Frank Kane, Sam Dana, and Frank Fox, the latter also a constable of Kansas City."

The appellant has not favored us with a brief, but we have carefully examined the record in connection with the errors assigned in his motion for new trial.

1. The first complaint is the overruling of his application for continuance on the ground of the absence of two witnesses, Brennon and Poole, by whom he claimed he could establish his plea of alibi. The indictment was returned April 13, 1920; the defendant was arraigned April 15. The record shows that he applied for a continuance on June 2, 1920, which application was overruled. He forfeited his recognizance on July 12, 1920. The case came on for trial on December 13, 1920, when he made his second application for a continuance. The bill of exceptions shows that the defendant put four witnesses on the stand to establish his defense of alibi., The application discloses that the testimony of the absent witnesses would have been of the same character as that of the witnesses the defendant produced on that issue; it was simply cumulative. The case had been pending in court for more than eight months. It is alleged the witnesses had been absent from the city for several months, engaged in the racing business. It is not shown when the witnesses left the city, or whether the defendant knew of their intention to leave in time to serve them with subpoenas or to take their depositions. He had secured a continuance by forfeiting his recognizance. The granting of a continuance is largely in the discretion of the trial court. The defendant was not prejudiced by the refusal of the continuance. The application was properly overruled. State v. Williams, 170 Mo. 204, 70 S. W. 476; State v. Cain, 247 Mo. 700, 153 S. W. 1039; State v. Salts, 263 Mo. 304, 314, 172 S. W. 373.

2. It is claimed that the court erred in permitting the witness McNutt to testify to the identity of the barrels of whisky by comparing the marks, brands, and numbers thereon with the original record kept by the government at the distillery and...