State v. Cohen

• Decision Date: 09 December 1913
• Parties: STATE v. COHEN.
• Court: Missouri Supreme Court

162 S.W. 216

254 Mo. 437

STATE v. COHEN.

Supreme Court of Missouri, Division No. 2.

December 9, 1913.

Rehearing Denied January 6, 1914.

1. CRIMINAL LAW (§ 507)—"ACCOMPLICES"— WHO ARE.

On a trial for receiving stolen goods, the thief is not an accomplice, since an accomplice is one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime, so that the principal and the accomplice must co-operate in the commission of the crime.

2. CRIMINAL LAW (§ 507)—ACCOMPLICES— WHO ARE.

On a trial for receiving stolen goods, a witness who received the goods, and who, at the request of accused, clandestinely returned them, and who pointed out to the thief the place to which the goods should be taken, was not an accomplice, because it did not appear that the witness and accused co-operated in committing the crime.

3. RECEIVING STOLEN GOODS (§ 3)—ELEMENTS OF OFFENSE—INTENT.

A fraudulent intent is not a necessary element of the crime of receiving stolen goods, punishable by Rev. St. 1909, § 4554, but the gravamen of the crime is the receiving of stolen goods, knowing the same to have been stolen.

4. CRIMINAL LAW (§ 814)—INSTRUCTIONS— SUPPORT IN EVIDENCE.

Where on a trial for receiving stolen goods accused denied that he ever had possession of the goods for any purpose, the refusal of an instruction that, if accused received the goods for the purpose at the time of turning them over to the owner, he must be acquitted was not erroneous.

5. CRIMINAL LAW (§ 814)—INSTRUCTIONS— APPLICABILITY TO EVIDENCE.

Where on a trial for receiving stolen property there was evidence that accused, on the evening of the theft, in reply to the thief's demand for money, said, "get away from here, the police are around here," and that accused offered to pay the thief to leave and to not appear against him, and requested the thief to deny that he knew accused, an instruction declaring the law as to how the jury should consider any statements relating to the crime made by accused was not objectionable as not justified by the evidence.

6. CRIMINAL LAW (§ 1137)—APPEAL—RIGHT TO COMPLAIN OF ERROR.

Accused may not complain of evidence brought out by him on the cross-examination of a state's witness.

7. CRIMINAL LAW (§ 1170½)—APPEAL— HARMLESS ERROR—EXAMINATION OF WITNESSES.

Where an answer to a question asked a state's witness on redirect examination disclosed nothing different from the inference which could be drawn from the facts disclosed on the cross-examination, the overruling of objections to the question on redirect examination was not erroneous.

8. CRIMINAL LAW (§ 370)—EVIDENCE—OTHER OFFENSES—ADMISSIBILITY.

On a trial for receiving stolen goods, evidence that accused had received from the same person other stolen property, paying a low price for it, was admissible to show guilty knowledge.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Harry J. Cohen was convicted of receiving stolen property, and he appeals. Affirmed.

The indictment charged defendant with knowingly receiving stolen property of the value of $735. Trial was had in the circuit court of the city of St. Louis, Mo., resulting in defendant's conviction, and his punishment being assessed at two years in the penitentiary. The stolen property, so received, consisted of eight bolts of blue serge cloth and one bolt of brown serge cloth, totaling 735 yards. The evidence on the part of the state tends to show the following facts: Defendant was in the wholesale liquor business in the city of St. Louis, occupying a storeroom about 25 by 75 feet.

Ernest Miller, one of the principal witnesses for the state, testified that, on the morning of June 14, 1911, Fred. Lineman and George Meyers hired his express wagon and drove it down the street, following a delivery wagon of the Manhattan Cloth Sponging & Water Proofing Company, until the latter wagon stopped near the corner of Eighth street and Washington avenue, St. Louis, Mo. At this point, the driver of the Manhattan wagon having gone into an adjoining building, Lineman got into the Manhattan wagon and drove away, witness' wagon, in charge of Meyers, following. The two wagons were driven some distance along the street and into an alley. The wagons proceeded up the alley, stopping at the vacant building in the rear of defendant's place of business. Here Lineman and Meyers took the serge cloth from the Manhattan wagon and placed the cloth in the vacant building. Miller, who had followed along on the sidewalk and up to this place, took his wagon home. Defendant was not present at the vacant building. Defendant's place of business was on the front part of the lot, and was separated from the vacant building on the rear of the same lot by means of a high fence and locked gate. That same evening, about 5:30, Miller went to defendant's place of business and saw defendant carrying the serge cloth into the back room of his wholesale liquor store and defendant and another man were engaged in unrolling a bolt of cloth, and Miller there asked the defendant who was going to pay him the $3 for the use of his wagon in hauling the goods, and defendant replied, "Get away from here; the police are around here;" defendant telling the witness he would see him "to-morrow at Ninth and Locust at one o'clock," but that defendant never paid him the $3. As witness was leaving defendant's place of business he saw Lineman and Meyers go into the same. Witness further testified that after defendant was arrested defendant requested him to leave town and not appear against him, promising to pay him money and his expenses, and he also wanted the witness to testify that a man by the name of Seltzer, and not himself, received the goods. Witness refused to leave town, and later defendant asked him to be as lenient as possible and deny knowing him. On another occasion, on June 2d, witness saw Lineman taking cases of stolen dry goods (ladies' underwear) into defendant's place of business, and, on the day before the serge cloth was stolen, he saw Lineman deliver 14 cases of stolen shoes (168 pairs) to defendant, and defendant paid Lineman $147 for same. The shoes were stolen from the out-bound platform of the L. & N. R. R. Co. Defendant told Lineman whatever he got the next day "to put them in back there," that he (defendant) would be in Granite City all afternoon, and would return about 4 o'clock. At another time, during the month of May, Lineman brought the defendant 10,000 Preferencia cigars, which were stolen from the platform of the Wabash Railroad Company. Defendant bought the cigars from Lineman paying him one and one-half cents apiece for them. On May 15th, Lineman delivered three barrels of stolen whisky to defendant. The whisky was stolen from the Frisco freight depot. This witness also testified that defendant told Lineman to go out and get him a good lot of "merchandise, shoes, whisky, anything"; and that if they could get goods from the Manhattan wagon he would buy them. This was two or three days before the goods were taken from the Manhattan wagon. On cross-examination, this witness testified that he had hauled stolen goods for Lineman and Meyers for about 500 times and that defendant was the "paymaster." And that on the morning of June 13, 1911, witness, Lineman, and Meyers were in defendant's office, and defendant pulled a "roll" of money out of his pocket and said: "Get busy, boys, I have a lot of money to-day. If you get any stuff and I am not here put it in the back room and I will be back at 5 o'clock in the evening." The witness admitted that he was a witness in the trial of Lineman, and that at that trial he testified that he did not see where they delivered the serge cloth on the 14th day of June. On redirect examination, the witness further testified that Cohen had bought the goods which were stolen on the 500 occasions and had shipped them away. This witness testified that he was arrested in connection with the stealing of the cloth, and that he turned "state's evidence" and the case against him was "nolle prossed."

Armen Traxler, president of the Big Four Transfer Company, testified that the president of the Manhattan Company asked him to aid in finding the stolen goods. The witness then called upon defendant and told defendant that he "probably knew who had the goods" and asked defendant to aid him in helping recover them. Defendant promised to do all he could to help recover the goods, and later defendant told Traxler that he had seen the parties that had the goods and that they would return the goods upon payment of the money which they had paid for the goods, plus $100. Traxler had several interviews with defendant, and later went out to defendant's house, where he had a talk with defendant and defendant's wife and left about $300 in currency on a table at defendant's house, with the understanding that defendant was to use the money in paying the man who had the goods. Defendant said that he would try to get the goods back, and said that the party who had the goods had told him that they were in Chicago and that they were afraid to ship them back at that time. Later defendant told the witness that Seltzer was the party that had received the goods, and that they were in the charge of a Mr. Rosenthal in Chicago. Some days elapsed and the goods were not returned, and the witness saw defendant and told him that the man whose goods had been stolen demanded that his goods or the money which the witness had turned over to defendant be returned. The next day defendant's wife returned the money to Traxler; Traxler promising to repay the money if the goods were later delivered. A few days later witness was called by telephone and a lady's voice said: "If you go to 2815 Gamble, you will find four cases there." The witness did not know whose voice it was, but, upon going to the place directed by the telephone message, found the serge cloth which had been stolen. The goods were...