State v. Bryant

• Decision Date: 12 January 1959
• Docket Number: No. 46562,No. 2,46562,2
• Citation: State v. Bryant, 319 S.W.2d 635 (Mo. 1959)
• Parties: STATE of Missouri, Respondent, v. William BRYANT, Appellant
• Court: Missouri Supreme Court

Page 635

319 S.W.2d 635

STATE of Missouri, Respondent, v.William BRYANT, Appellant.

No. 46562.

Supreme Court of Missouri, Division No. 2.

Jan. 12, 1959.

Cecil Block, St. Louis, for appellant.

John M. Dalton, Atty. Gen., William G. Goodin, Asst. Atty. Gen., for respondent.

STORCKMAN, Presiding Judge.

The defendant, William Bryant, was found guilty of buying and receiving stolen property in violation of Sec. 560.270 RSMo 1949, V.A.M.S., and the jury assessed his punishment at two years in the penitentiary.His motion for a new trial was overruled and he has appealed from the judgment of conviction.

No brief has been filed on behalf of appellant and the case is before us on the transcript of the record and the brief of the respondent.In these circumstances, our review extends to the essential record and allegations of error properly preserved in the motion for new trial.Supreme Court Rules 27.20, 28.02 and 28.08, 42 V.A.M.S.;State v. Garrison, Mo., 305 S.W.2d 447, 449;State v. Swiney, Mo., 296 S.W.2d 112, 114.

The state's evidence tended to prove that on Sunday, February 10, 1957, Wesley Brown, a fifteen year old boy, entered the factory building of Cardinal Food Products, Inc., manufacturers of dog food, at 711 South Theresa, in St. Louis, and stole brass machinery parts and fittings which he sold to the defendant who conducted a junk yard at 3521 Papin Street.Brown, who was committed to the Boonville Training School at the time of trial, testified that he removed some of the stolen brass from the canning machinery but some of it was unattached; that he piled the articles in a corner of the building and went to defendant's junk yard where he obtained a sack, telling the defendant that he had some brass 'from the same place where I got the stuff before.'Brown further testified that he used the sack to carry the brass to defendant's junk yard where it was weighed by the defendant who then paid Brown $2 and told him to come back later to get $2.50 more and that he, Brown, at the defendant's direction, hid the sack and its content in a shed at the junk yard.

Police officers testified that, in the course of their investigation of the theft, they went to the junk yard and were told by the defendant that a young Negro boy named Wesley came to defendant's place with a sack of brass fittings but that he refused to buy the metal and told the boy to leave.The defendant gave the police officers permission to search his junk yard and they found the sack containing the brass in a shed under some rags and an old mattress.There was evidence that the brass machinery parts and fittings were worth from $275 to $300.

The defendant, in his own behalf, testified in substance that he had never been convicted on any offense, that the Brown boy had brought the sack of brass to his place of business, but that he had refused to purchase the metal because he believed the boy had stolen it and that he did not know how it got in the place where the police found it.There was other testimony on behalf of the defendant including that of a character witness.

Although the defendant has filed no brief, we are required to review the sufficiency of the information, it being an essential part of the record before us.Art. I, Sec. 17,Constitution of Missouri 1945, V.A.M.S.;Sec. 547.270 RSMo 1949, V.A.M.S.; Supreme Court Rules 21.01 and 28.02;State v. Pitts, Mo., 282 S.W.2d 561, 562;State v. Crawford, Mo., 262 S.W. 700.Unless other grounds are properly preserved, our review is limited to legal deficiencies appearing on the face of the information.State v. Pippey, 335 Mo 121, 71 S.W.2d 719, 721;State v. Janson, 80 Mo. 97.

The information upon which the defendant was tried is identical in form with the indictment held fatally defective in State v. Harris, Mo., 313 S.W.2d 664, because it failed to charge that the defendant received the stolen property with intent to defraud.In fairness to the prosecution it should be noted that the instant case was tried before the decision in the Harris case was rendered.

The information omitting introductory and concluding parts, is as follows: 'That William Bryant in the City of St. Louis, on the 10th day of February, 1957 one type holder--can marker from a can sealing machine, of the value of one hundred seventy-five dollars; three solid brass 'pockets' from a can filling machine of the value of thirty dollars; one solid brass can lid release, of the value of fifty dollars; five various type brass valves, of the value of twenty dollars; three brass fittings, of the value of two dollars; three solid brass plungers, from can filling machines, of the value of fifteen dollars; all of the total combined balue of two hundred ninety-two dollars; of the goods and personal property of the Cardinal Food Products, Inc., a corporation, then lately before feloniously stolen, taken and carried away from the said Cardinal Food Products, Inc., a corporation with the felonious intent on the part of the thief to permanently deprive the owner of the use thereof, feloniously and fraudulently did from said thief buy, receive and have, the said William Bryant then and there well knowing the said goods and personal property to have been feloniously stolen, taken and carried away, with the felonious intent on the part of the thief, as aforesaid, to permanently deprive the owner of the use thereof; contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.'¹

An intent to defraud was made an essential element of the state's case by the amendment of Sec. 560.270effective August 29, 1955.Here, as in the Harri...