State v. Brewer, 44700
| Decision Date | 13 February 1956 |
| Docket Number | No. 44700,No. 1,44700,1 |
| Citation | 286 S.W.2d 782 |
| Parties | STATE of Missouri, Respondent, v. Claude BREWER, Appellant |
| Court | Missouri Supreme Court |
Melvin Englehart, Fredericktown, for appellant.
John M. Dalton, Atty. Gen., William B. Waters, Sp. Asst. Atty. Gen., for respondent.
Defendant, convicted of grand larceny and sentenced to two years imprisonment in the penitentiary, has appealed. He makes three allegations of error, namely: Improper corss-examination, improper argument by the prosecuting attorney and error in giving Instruction One because of lack of substantial evidence to show that the value of the property found in his possession was more than $30.
The State's evidence showed that the stolen property (bedroom suite, sewing machine, rug, clothing, bedspread, pillows and radio) was located in a house on the Low Hollow public road, in Reynolds County, about four miles from the nearest town. This property belonged to Elmer Warner, who was working in St. Louis. His father-in-law Alvin McNail lived nearby and on Saturday evening, March 6, 1954, McNail and Warner went to the house and found all of the property there. On Sunday evening, Mrach 7th, McNail found that the house had been broken into and the bedroom furniture and other personal property missing. About two weeks later, defendant was arrested at Ironton and much of the missing property was found in his truck. (Warner's name was written on the bed slats and some key chains advertising a service station he had operated were found in a dresser drawer.) Mr. and Mrs. John Hampton testified they saw a truck of the same description as defendant's (and with the same name on the door) go by their house in the afternoon of March 7th and return about half an hour later. Mr. Hampton said this was the only vehicle that passed his house that day (they lived on a dead-end road) and Mrs. Hampton positively identified defendant as the driver.
Defendant's defense was an alibi, having testimony of two brothers, his wife and a brother's wife to show that he was in the town of Caledonia the entire day of March 7th. Defendant said that he bought the furniture and other articles for $11 during the evening of March 7th from three men he did not know who came to his house in a red pickup truck.
The evidence as to value came in as follows:
'The Court: Overruled.
'
No other objection or motion was made; and defendant's brief, under 'Points and Authorities', does not allege error in overruling the above objection; but only alleges error in giving Instruction One (authorizing conviction for grand larceny) on the ground that there was no substantial evidence to show that the value of the property was more than $30. However, at least, as to common classes of personal property, 'the law seems to be that an owner of property, without further qualifications, may testify to its reasonable market value, and the jury determines the weight and value of such testimony.' Baird v. Ellsworth Realty Co., Mo.App., 265 S.W.2d 770, 774 and cases cited; State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68, 72; 20 Am.Jur. 752, Sec. 894; 32 C.J.S., Evidence, Sec. 545, p. 315. Likewise, in State ex rel. Terry v. Ace Storage & Moving Co., Mo.App., 135 S.W.2d 363, 368, where only plaintiff testified as the value of her furniture claimed to have been converted, it was said: 'Any lack of experience on plaintiff's part in regard to the valuation of furniture and the like affected only the weight, and not the competency, of her testimony.' Defendant cites State v. Doepke, 68 Mo. 208, in which a conviction of grand larceny was reversed because an instruction gave the jury an improper standard of value to the effect 'that it was sufficient if they found it to have been of that value to the owner, and that it was not required that it should be of that value to third persons, or that it would command that price in the open market.' Defendant also cites State v. Krieger, 68 Mo. 98 in which there was no evidence whatever as to value; and State v. Stanley, 123 Mo.App. 294, 100 S.W. 678 and State v. Bresse, 326 Mo. 885, 33 S.W.2d 919, in both of which the only evidence was the cost to the owner, but in which nevertheless such cost was held to be some evidence of value. State v. Walser, 318 Mo. 833, 1 S.W.2d 147 and State v. Jones, Mo.Sup., 227 S.W.2d 713, also cited by defendant, are not in point; in the latter there was a total failure of proof that the defendant took any money as charged and the former involved qualifications as an expert witness. In this case, there was no objection that the owner was using an improper standard of value, no...
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