State v. Carpenter

• Decision Date: 02 February 1909
• Parties: STATE v. CARPENTER.
• Court: Missouri Supreme Court

115 S.W. 1008

216 Mo. 442

STATE v. CARPENTER.

Supreme Court of Missouri, Division No. 2.

February 2, 1909.

1. INDICTMENT AND INFORMATION (§ 125)— JOINDER OF OFFENSES—STATUTES.

Under Rev. St. 1899, § 1891 (Ann. St. 1906, p. 1294), providing that, if any person in committing burglary shall also commit a larceny, he may be prosecuted for both offenses, etc., a burglary and larceny, though distinct offenses, may be charged in the same count, where, in the commission of a burglary, a larceny is also committed, and the jury on the testimony warranting it may convict of either of the offenses.

2. CRIMINAL LAW (§ 829)—TRIAL—INSTRUCTIONS —REFUSAL TO GIVE INSTRUCTIONS COVERED BY THOSE GIVEN.

It is not error to refuse requested instructions embraced in the instructions given.

3. WITNESSES (§ 255)—EXAMINATION—MEMORANDUM TO REFRESH RECOLLECTION.

One making from memory on the day following a burglary of a toolhouse and the larceny of tools therein a memorandum of the loss of tools stolen may use it to refresh his memory as to the nature and character of the tools

while testifying on the trial for the burglary and larceny.

4. LARCENY (§ 55)—EVIDENCE—SUFFICIENCY.

Evidence held to justify a conviction of larceny.

Appeal from Criminal Court, Jackson County; Wm. H. Wallace, Judge.

M. F. Carpenter was convicted of grand larceny, and he appeals. Affirmed.

This is an appeal on the part of the defendant from a judgment of conviction in the criminal court of Jackson county, Mo., of grand larceny. On the 28th day of December, 1906, at the September term of the criminal court of Jackson county, at Kansas City, the prosecuting attorney filed in open court an information, properly verified, charging Harvey Adair and M. F. Carpenter with the crime of burglary in the second degree and grand larceny. The offense, as charged, consisted in breaking into a tool-house belonging to C. A. Harris in Kansas City, and taking therefrom numerous carpenter tools, the property of divers persons, of the aggregate value of $113.55. On the 11th day of June, 1907, the defendant was duly arraigned and entered his plea of not guilty. On the 9th day of October, 1907, during the September term of said court, the trial of this defendant, M. F. Carpenter, proceeded. The testimony developed upon the trial of said cause tended to establish substantially the following state of facts: That on the 2d day of December, 1906, the firm of Harris & Hogue, contractors and builders, were engaged in constructing a livery barn for Eyler Bros. at 1712 McGee street, in Kansas City, having in their employ several carpenters. They had there a small building on wheels, the property of A. C. Harris of said firm, which was used for the purpose of storing the tools of the workmen employed upon said building. At about 5 o'clock of that day, which was Saturday, the workmen on said building finished their day's work, and assembled their tools in said toolhouse, the door of which was locked by means of a staple, a hasp, and a padlock. The next morning the door of said toolhouse was found open, the staple had been broken, and the lock removed and thrown away, and a large number of tools of said workmen were gone. On the same day, which was Sunday, two officers observed the defendant in an alley in said city carrying carpenter's tools in his pockets and under his arms. As defendant recognized the officers, he turned and made rapid steps to get away, but they arrested him and took him to the police station. When they first asked defendant where he got the tools, he said they were his. Later, however, he said he got them from a man by the name of Harvey Adair. On defendant's person at the time of his arrest they found a pawn ticket, which had been issued to him the same day for carpenter's tools. The officers learned the location of the room which then was occupied by Adair. For some time prior to a few days before that time defendant had been occupying the same room with Adair. Under the bed in said room was found a chest of tools, and in the bed were found other tools, and at the pawnshops numerous tools were also found, all of which tools, as thus found on defendant's person, those found in the room, and those found in the pawnshops, were positively identified as being the property of the persons mentioned in the information. It is also shown in evidence that on said Sunday morning defendant was at said room.

Defendant introduced several witnesses whose testimony tended to prove that on Friday night before the Sunday afternoon in question defendant went to Pittsburg, Kan., distant about 130 miles, or about 4 or 5 hours' ride by rail from Kansas City, and that he left Ft. Scott for Kansas City after 1 o'clock on said Sunday morning, arriving at Kansas City about 7 o'clock a. m. Defendant himself testified to the same effect, and he said that Sunday morning as he was walking down the street, soon after his arrival at Kansas City, he met a man named Smith with a bundle of tools, who stopped him and asked him if he knew where he could pawn the tools. Defendant testified that he gave Smith some directions about pawnshops, but Smith made some excuse as to why he did not wish to go to the pawnshop, and defendant himself undertook to pawn the tools, and did pawn them for Smith. He admitted having been at the said room on that Sunday morning, where he met Harvey Adair and Smith, who had given him the package of tools to pawn. Defendant said that the three talked in the room for a time, when they loaded him up with tools, and sent him out to pawn...