State v. Bright

• Decision Date: 14 June 1954
• Docket Number: No. 1,No. 43850,43850,1
• Citation: 269 S.W.2d 615
• Parties: STATE v. BRIGHT
• Court: Missouri Supreme Court

Page 615

269 S.W.2d 615

STATE v. BRIGHT.

No. 43850.

Supreme Court of Missouri, Division No. 1.

June 14, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 12, 1954.

Morris A. Shenker, Bernard J. Mellman, St. Louis, for appellant.

John M. Dalton, Atty. Gen., David Donnelly, Special Asst. Atty. Gen., for respondent.

HOLLINGSWORTH, Judge.

Upon trial by jury in the Circuit Court of the City of St. Louis, defendant was found guilty of the offense of knowingly receiving stolen property of the value of more than thirty dollars and his punishment was fixed at imprisonment in the State Penitentiary for a term of two years. He has appealed from the judgment and sentence imposed in conformity with the verdict, alleging: (1) that the indictment is fatally defective; (2) error in overruling his pretrial motion to dismiss and separate plea in abatement; (3) error in refusal of his motion 'in the nature of a demurrer to the evidence'; (4) failure to instruct the jury upon the lessor offense of receiving stolen property of a value less than thirty dollars; (5) error in Instruction No. 1, submitting the case; (6) errors in the admission of evidence; and (7) error in refusing to reprimand counsel for the State and to declare a mistrial because of improper conduct during the trial.

All of the evidence adduced at the trial was presented by the State. The contention made by defendant that substantial portions of it were erroneously admitted makes it necessary to separately summarize the testimony of several of the witnesses.

Adolph Katz testified: He is and during the times herein mentioned has been general superintendent of Forest City Manufacturing Company, a corporation domiciled in the City of St. Louis and engaged in the manufacture of ladies dresses. It also sells dresses made by its subsidiaries, Doris Dodson Garment Company, and several others, each of which places its labeled name upon the garments manufactured by it. All of these subsidiaries are incorporated but are owned by Forest City Manufacturing Company, as the parent corporation. The products of these companies are generally sent to the buyers by parcel post. As general superintendent, witness has access to all of the books, records and accounts of Forest City Manufacturing Company and general supervision of the receiving, packaging and inspection in the process of manufacture and distribution of the products marketed by it, but he does not personally keep the books and records and does not actually package or send out the goods. The records kept by his employer are standard business records and are made up from day to day. They contain a complete record of the company's business operations. Over defendant's objection, witness was permitted to testify that these records showed that during 1951 and until March, 1952, large quantities of the dresses produced by his employer and its subsidiaries, estimated at about $25,000 in value, were 'going astray'.

The witness further testified: Dresses packaged and stamped for mailing to customers were delivered to Supreme Express Transfer at Forest City's place of business for transfer to the post office. Bill Lakes, an employee of Supreme Transfer, was the driver who generally 'picked them up.' Witness identified several dresses shown him, State's Exhibits 1, 3, 4 and 5, as typical of the products 'gone astray', but could not positively identify them as products of either Forest City or any of its subsidiaries for the reason that the labels had been removed. He did, however, identify one dress, State's Exhibit 2, as a product of Forest City Manufacturing Company and testified that its value was $8.75. Witness heard defendant questioned at police headquarters concerning the matter of these dresses and heard him state that he did receive packages of dresses from Lakes and that he had disposed of some of these dresses.

Bill Lakes testified: He is confined in the penitentiary, serving a term of imprisonment upon a plea of guilty to grand larceny for the theft of the dresses here in question. He worked as a driver for Supreme Express Transfer in 1951 and 1952, making 'pick-ups' from Forest City Manufacturing Company and Doris Dodson and delivering them to the post office. He met defendant in 1951 and thereafter saw him frequently at the 29 Bar on Market Street. In the early part of 1952 (and 1951?), witness began to take boxes of dresses from his delivery truck at weekly or biweekly intervals. He took fifty or more boxes of dresses from the truck and sold them to defendant and other persons. He would leave the boxes on the truck instead of delivering them to the post office. He delivered five or six packages to defendant, for each of which defendant paid him $10 or $12, depending upon the size of the box. Defendant knew that he, Lakes, was stealing these packages and selling them. While talking and drinking together, defendant said to him, 'You can let me have some of those things too. We can get together and make a little money.' Witness replied, 'Okay, I would let him have some of them.' He told defendant the dresses were 'hot'.

William Heffern, a police officer, testified: He questioned defendant following his arrest. Defendant stated that on or about March 1, 1952, March 6, 1952, and March 15, 1952, he purchased three cardboard boxes containing dresses from a colored man by the name of William Lakes; that he paid $10 for the box received on March 1st; it contained three ladies dresses; that on March 6th, he paid $10 for another box containing about eight ladies dresses; that on March 15th, there were twelve dresses in the box received from Lakes for which he paid $34 to Lakes. Defendant further stated that he sold these dresses to various colored people; that about March 15th, he sold three dresses to a colored lady named Lula Jones for $3.00 or $3.50 each; that he also gave Lula Jones two dresses; that defendant further said that Lakes had sold dresses to other people in the 29 Bar. Defendant further stated that he asked Lakes if he, defendant, could buy some dresses from him and Lakes replied 'Yes', he could; that he, defendant, had then asked Lakes where he got the dresses and Lakes stated that he stole them from the truck he was driving; that he would take dresses from Forest City Manufacturing Company to the post office and that when he got to the post office he would unload most of the packages, but would leave 'a couple' on the truck, later take them over to the 29 Bar and leave them there.

Evry Jackson testified: She knew defendant. In 1952 defendant asked witness if she wanted to buy some dresses and she replied that she did. Thereafter, she bought three dresses from him for her daughter, Lula Jones, paying him $3.00 or $3.50 for each. Defendant also gave her two dresses.

Lula Jones, daughter of Evry Jackson, corroborated the testimony of her mother and further testified the dresses were thereafter delivered to the police; and that State's Exhibit 1 was an exact pattern of one of the dresses she bought. Edward Rung, a police officer, testified that he recovered five ladies dresses from Evry Jackson and her daughter, Lula Jones. They were the dresses marked State's Exhibits 1 to 5. Several other witnesses, including police officers and postal inspectors, testified, but their testimony is merely corroborative of that hereinabove set forth and need not be narrated. Other testimony will be referred to as it becomes pertinent.

In his motion for new trial defendant for the first time attacked the indictment, contending that it did not allege a valid charge under the laws of the State of Missouri and that a judgment of conviction could not be legally bottomed thereon. His complaint before this court is that it does not allege 'with sufficient particularity the date when the alleged offense occurred' and that it is 'completely vague and indefinite as to what property the defendant is charged with having received.' We need not here set forth the indictment. It is substantially in the form approved in this court in State v. Washington, Mo.Sup., 24 S.W.2d 1010, 1011, and State v. Derrington, Mo.Sup., 137 S.W.2d 468, 469-470. The date of the receipt by defendant of the goods allegedly theretofore stolen from Forest City Manufacturing Company is alleged in the indictment to be 'between the 1st day of February, 1952, and the 1st day of April, one thousand nine hundred and fifty-two.' The goods alleged to have been so received are described as 'eight cartons containing ladies wearing apparel of the value of one hundred dollars each, all of the total combined value of eight hundred dollars; of the goods, chattels and personal property of Forest City Manufacturing Company, a corporation', etc.

Defendant wholly fails to point out how or in what manner he was or could have been prejudiced or misled by the date alleged in the indictment or how or in what manner he was or could have been misled or prejudiced by any lack of definiteness in the description of the property allegedly received by him. The trial began on April 22, 1953, at which time Supreme Court Rule 24.03, 42 V.A.M.S., had been in effect since January 1, 1953. It provides: 'When an indictment or information alleges the essential facts constituting the offense charged but fails to inform the defendant of the particulars of the offense sufficiently to prepare his defense, the court may direct or permit the filing of a bill of particulars. A motion for a bill of particulars. may be made only within ten days after arraignment and before the trial commences or at such other time before or after arraignment as may be prescribed by rule or order of the court. * * *' Defendant could have availed himself of the provisions of this Rule, and presumably would have done so had it been necessary to the preparation of his defense. There was no discrepancy between the dates and description of the property alleged in the indictment and shown by the...