State v. Bryant

• Decision Date: 19 February 1930
• Docket Number: No. 29861.,29861.
• Citation: 24 S.W.2d 1008
• Parties: STATE v. BRYANT.
• Court: Missouri Supreme Court

24 S.W.2d 1008

STATE v. BRYANT.

No. 29861.

Supreme Court of Missouri, Division No. 2.

February 19, 1930.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

Ernest Bryant was convicted of automobile theft, and he appeals.

Affirmed.

A. L. Shortridge, of Sedalia, for appellant.

Stratton Shartel, Atty. Gen., and Walter E. Sloat, Sp. Asst. Atty. Gen., for the State.

DAVIS, C.

In an information filed in the circuit court of Pettis county by the prosecuting attorney, defendant was charged with the theft of an automobile. The jury returned a verdict of guilty, and assessed his punishment at imprisonment in the penitentiary for two years. Defendant appealed from the judgment entered on the verdict.

The evidence for the state warrants the finding that one C. W. Finley, a resident of Sedalia, owned a Maxwell automobile. On the night of March 21, 1928, he stored it in his garage, which he locked. Some one that night broke the lock to the garage and took his car. It had disc wheels. He discovered it the next day several miles southeast of Sedalia. It was stripped and burned. On April 2d, while going along Fifth street in Sedalia, he observed a parked Maxwell car. He observed that the tires resembled the tires that were on his car the night it was taken from the garage. A license for this car was issued to defendant. Later in the afternoon, he again saw the car, and thereupon he examined the tires. The numbers on three of the tires had been cut off. On the other the number was intact. He had shortly before purchased the tire. On going to the dealer who sold him the tire, he ascertained the number of the tire that he purchased. It was identical with the number of this tire he examined on the car. The tire was made by the same manufacturer.

While Finley was examining the tire on the car, defendant approached and cranked the car. Finley asked him where he got the tires. Defendant answered that he had bought them on Third street. Upon asking defendant to give him the name of the party from whom he obtained them, defendant replied that it was none of his G____ d____ business and drove off. On first approaching, however, defendant said that his name was Bryant and that he lived "out west of Florence." Defendant did not live near Florence, but in a different direction, although he had previously lived near Florence.

Nearly a month later, James Lee, a farmer, while driving along the Florence-Smithton road, observed a tire protruding from a culvert. As it appeared in good condition, he alighted to inspect it. Ultimately he found four tires at that place. He took the tires to Sedalia and turned them over to one Bruce Ullmer, who advertised in a newspaper the finding of them. Finley saw the advertisement and investigated. Upon describing the tires, Ullmer delivered them to him. They were the same tires that were on his automobile the night it was stolen, and the same tires that were on defendant's automobile at the time he examined them on April 2d on Fifth street in Sedalia. Finley unequivocally identified the tires and the tubes as belonging to him, not only from the number on one of them, but also by certain marks on them.

The testimony for defendant tends to show that his car did not have disc wheels, and that Finley's tires could not be used on the wheels on his car. It also tended to show that defendant and his father from time to time purchased old tires from secondhand dealers in Sedalia. At the time of the taking of the automobile and on the day the prosecuting witness stated that he met defendant on Fifth street, defendant was engaged in work at a certain place in Sedalia.

I. Defendant contends that the evidence is insufficient to sustain the verdict of guilty. It tends to show that defendant owned the automobile on which Finley saw the tires that he said were on his automobile at the time it was stolen. Finley's tires, as the evidence tends to show, were on defendant's car, for the evidence shows that a state license had been issued to defendant covering said automobile. His possession of the tires may then be said to be exclusive. However, it is said that the possession of the stolen tires fails to establish the larceny of the automobile by defendant. The evidence tends to show that the tires were on Finley's automobile at the time it was taken. Thus they were a part of the property stolen. This justified the finding by the jury that defendant stole Finley's automobile, for it may be inferred from possession of a part of the property stolen that the accused stole all of it. 36 C. J. 870; State v. Beatty, 90 Mo. 143, 2 S. W. 215. Defendant was in personal possession of the tires, and his possession was conscious and exclusive, and unexplained by any direct or circumstantial evidence that would rebut the taking of Finley's automobile. He not only failed to explain his acquisition of the tires, but he misled Finley on inquiry as to his place of residence, and, we may infer, he attempted to get rid of the incriminating evidence by putting the tires in the culvert. State v. Castor, 93 Mo. 242, 5 S. W. 906. It is true that defendant answered Finley that he bought the tires on Third street, but upon inquiry he refused...