State v. Bresse

• Decision Date: 20 December 1930
• Citation: 33 S.W.2d 919,326 Mo. 885
• Parties: The State v. Thomas E. Bresse, Appellant
• Court: Missouri Supreme Court

33 S.W.2d 919

326 Mo. 885

The State v. Thomas E. Bresse, Appellant

Supreme Court of Missouri

December 20, 1930

Appeal from Lafayette Circuit Court; Hon. Robert M Reynolds, Judge.

Reversed and remanded.

Louis J. Rasse and Lyons & Ristine for appellant.

(1) Whether defendant was previously convicted or not was a question of law and not a question of fact and only had to do with the quantum of punishment to be assessed against him in case the jury found him guilty of the charge for which he was being tried. When the defendant offered to confess the previous conviction and asked the court to exclude such previous conviction from the jury as a part of the State's case in chief, the court erred in not doing so because the introduction of evidence as to the previous conviction under such circumstances could serve no useful purpose other than to prejudice and inflame the minds of the jury against the defendant State v. Creed, 299 Mo 307; State v. Porter, 276 Mo. 387; State v. Rennison, 306 Mo. 473; State v. Pierson, 270 S.W. 347; State v. Oertel, 280 Mo. 137; State v. English, 67 Mo. 136; State v. Long, 22 S.W.2d 812; Stack v. Baking Co., 283 Mo. 419. (2) The demurrer at the close of all the evidence should have been sustained because "mere suspicion, however strong, will not supply the place of evidence when life or liberty is at stake." This verdict was based upon suspicion or probability of guilt and the previous conviction of the defendant, and not upon any clear or convincing testimony of the guilt of the defendant in this case. State v. Francis, 199 Mo. 692; State v. Huff, 296 S.W. 122; State v. Hazelhorst, 296 S.W. 140; State v. Mull, 300 S.W. 514; State v. Bell, 289 S.W. 619; State v. Odbur, 295 S.W. 734; State v. Little, 228 Mo. 573; State v. Fields, 234 Mo. 615; State v. Lobe, 190 S.W. 299; State v. Craft, 299 Mo. 332; State v. Drew, 179 Mo. 315. (3) The court committed prejudicial and reversible error in striking out the testimony of the State's witness, to the effect that he saw a green Ford coupe on the afternoon in question backing out from the north side of Second Street where the State claimed the Townsend car was parked, and that while being backed out it collided with another car and that the defendant was not there at the time, but came along later, and in refusing to permit the defendant to prove by said witness, on cross-examination, that said green Ford coupe had wire wheels and was parked thirty or thirty-five feet east of the intersection of Main and Second streets on the north side of Second Street, and that when said Ford coupe was backed out it was about 3:30 P. M. and that it collided with another car and drove away and that neither Bresse or any other person was in the vicinity at the time. State v. O'Connor, 105 Mo. 121. (4) The court committed prejudicial and reversible error in refusing to strike out the testimony of the State's witness, Mrs. William Barron, to the effect that the defendant placed a telephone call for Roswell Ruff about 9:30 P. M. on Saturday night, because said witness testified that all she knew about said call she learned from the telephone ticket made at the time and said telephone ticket indicated a call had been placed for the residence of a Mrs. Yates at Sedalia. This testimony permitted oral testimony to vary the terms of a written document, and even if true was no proof of the guilt of the defendant. State v. Campbell, 210 Mo. 232; State v. Ross, 300 S.W. 719; 16 C. J. 634, 635, sec. 1263; State v. O'Connor, 105 Mo. 121; State v. Little, 67 Mo. 624. (5) The court erred in giving the State's instruction numbered two, because said instruction authorized a conviction for the theft of an automobile if the jury found the defendant present for the felonious purpose and intent of aiding, abetting, assisting or encouraging Ruff or any other person to steal said car, and because said instruction is repugnant to Instruction 2a given by the State, in that Instruction 2a requires the jury to find that the defendant was present and in some way aiding, abetting, assisting or encouraging in the theft and because there is no evidence on the part of the State authorizing said instruction that he aided, abetted or assisted Ruff or any other person in the theft of the car. State v. Mason, 14 S.W.2d 616; State v. Affronti, 292 Mo. 70; State v. Orrick, 106 Mo. 120; State v. Clark, 221 Mo.App. 897. (6) The court erred in permitting the State's witnesses, Harris, Straws, Barnes and Grossman, to testify that they saw a man get out of the Bresse car and into a green Ford coupe with wire wheels, because such description was insufficient to identify the Townsend car, and because the State offered no testimony to rebut the positive evidence that Bresse was hired by a traveling man to take him to Nelson for the purpose of getting his own car, and because the State showed no conspiracy or concerted action or connection between the acts of this other man and Bresse, and the court erred in not striking out the testimony of these same witnesses on motion of the defendant for the foregoing reasons. State v. Bell, 289 S.W. 619; State v. Odbur, 295 S.W. 734; Stack v. Baking Co., 283 Mo. 419. (7) The court erred in permitting the State's witness to testify as to the value of the automobile alleged to have been stolen, because said witness did not qualify as an expert on values and indicated that he had no knowledge of the reasonable market value of cars of like kind and character, and the State wholly failed to prove the value of this car. Morrow & France v. Ry. Co., 220 Mo.App. 518; Campbell v. Fire Ins. Co., 269 S.W. 645; Roomey v. Yellow Cab & Baggage Co., 269 S.W. 669; Barnes v. Elliott, 251 S.W. 488; Schaaf v. Fries, 77 Mo.App. 346.

Stratton Shartel, Attorney-General, and Walter E. Sloat, Assistant Attorney-General, for respondent.

(1) When an information is drawn under the habitual criminal statute the State must allege and prove the former conviction and discharge. Sec. 3702, R. S. 1919; State v. Schneider, 29 S.W.2d 710; State v. Dalton, 23 S.W.2d 5. (2) The appellant's demurrer at the close of the evidence was properly overruled. The weight of the evidence is for the consideration of the jury subject to the approval of the trial court. When the jury accepted the testimony offered as true its decision will not be disturbed except for a total failure of proof. State v. Baumann, 1 S.W.2d 156; State v. Zoller, 1 S.W.2d 142; State v. Pinkard, 300 S.W. 751; State v. Hedrick, 296 S.W. 153; State v. Jackson, 283 Mo. 24; State v. Concelia, 250 Mo. 424. (3) The court acted in the interest of the defendant when he withdrew the evidence of Jerome Younger. This witness admitted to the court that the defendant was not present when the car which he had seen was being moved. The court therefore could not have permitted the evidence to go to the jury. Nothing prevented the defendant from calling this man as his own witness if he thought his testimony would be in any way helpful. If evidence is not relevant and it may be prejudicial to the defendant it cannot be admitted. State v. Thomas, 99 Mo. 257. The admission of such evidence is largely in the discretion of the trial court. State v. May, 172 Mo. 646. (4) The objection that the testimony of Mrs. Barron permitted oral testimony to vary a written instrument is not well taken. The evidence shows that Ruff was implicated with the defendant in this crime. It was proper to show their attempt to get in touch with each other on the same evening the crime was committed. Mrs. Barron was the telephone operator at Nelson. She testified she had made the record which was introduced in her regular line of duty, and at the time the call was placed. She had the right to look at this record and if her memory was sufficiently refreshed thereby, to testify to whom the call was made. Charles H. Fuller Co. v. St. Louis Wholesale Drug Co., 282 S.W. 537; Fagan v. Motor Car Co., 282 S.W. 137; American Paper Products Co. v. Morton Salt Co., 279 S.W. 763; State v. Patton, 255 Mo. 254. (5) Instruction 2 was properly given under Sec. 3687, R. S. 1919, providing that an accessory may be convicted as a principal. Instruction 2a explaining that mere presence does not render a person guilty was correct. Instruction 3 fully states the law under the habitual act and in conclusion properly negatives the main instruction with an instruction on grand larceny of a motor vehicle. The instructions fully cover the case when read together, as they must be. State v. Nasello, 30 S.W.2d 139; State v. English, 11 S.W.2d 1023; State v. Hicks, 3 S.W.2d 234; State v. Glass, 300 S.W. 694; State v. Ross, 300 S.W. 786. (6) Expert testimony is not necessary to prove the value of an automobile. The owner is amply qualified to state the value of his own car. Finn v. Indemnity Co., 297 S.W. 176; Grath v. Motor Car Co., 253 S.W. 777; Klein v. Motor Car Co., 237 S.W. 848.

Davis, C. Cooley, C., concurs; Westhues, C., not sitting.

OPINION

DAVIS

An information, filed in the Circuit Court of Saline County, after averring that defendant had been convicted of burglary and larceny in Marion County and duly sentenced, and, upon a compliance with said sentence, duly discharged from the State penitentiary, charged that defendant did steal a Ford automobile of the value of $ 500. He appealed from the judgment entered on the verdict finding him guilty and assessing his punishment at ten years' imprisonment in the penitentiary.

The evidence adduced on behalf of the State warrants the finding that, in 1913 in the Circuit Court of Marion County defendant was found guilty of burglary and larceny, and that he was sentenced for two years in the penitentiary for each offense and later paroled. Subsequently, the court revoked...