State v. Cohen

• Decision Date: 17 November 1936
• Docket Number: No. 35088.,35088.
• Citation: 100 S.W.2d 544
• Parties: STATE v. COHEN.
• Court: Missouri Supreme Court

100 S.W.2d 544

STATE v. COHEN.

No. 35088.

Supreme Court of Missouri, Division No. 2.

November 17, 1936.

Motion to Stay Mandate Stricken December 23, 1936.

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

H. A. Cohen was convicted of knowingly buying stolen property, and he appeals.

Affirmed.

Lamm & Barnett, of Sedalia, for appellant.

Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for the State.

WESTHUES, Commissioner.

Appellant was charged, by an indictment in the Pettis county circuit court, with the crime of knowingly buying stolen property. Upon a trial he was convicted by a jury and sentenced to two years' imprisonment in the penitentiary. He appealed.

The indictment charged the offense to have been committed on the ______ day of August, 1934. Appellant filed a motion to have the prosecuting attorney insert in the indictment the date the State intended to rely upon as the date of the alleged offense. Appellant also filed a motion to quash the indictment. As ground for these motions it was alleged that it was necessary for the appellant to know the exact date of the alleged offense in order to properly prepare his defense; that there was another similar charge pending against appellant wherein it was charged that the offense was committed on the ______ day of August, 1934. The trial court heard evidence upon these motions and overruled them. Appellant duly preserved these rulings for our review.

The State's evidence fixed the date of the alleged offense at somewhere between August 19 and August 29. It will be seen from the evidence offered by appellant, which will be mentioned later in the opinion, that the ruling of the trial court was not prejudicial to the rights of appellant. The State's witnesses were unable to fix the exact date of the alleged offense. The trial court was, therefore, justified in not compelling the State to select a certain date and to be bound thereby. State v. Bowers (Mo.Sup.) 29 S.W.(2d) 58, loc.cit. 59 (2, 3) (4).

The evidence adduced on the part of the State justified the following statement of facts: Ben Pugh, Harvey Bird, and Roy Wade were the three principal witnesses for the State. Some time prior to the alleged offense these witnesses picked up three railroad brass journals in the railroad yards at Sedalia. This brass was taken, by Bird, to the appellant's place of business at Sedalia and sold to him for $1.50. There is no contention that this transaction was not legitimate. At the time of this sale appellant informed Bird that he would buy all the railroad journal brass he would bring him. Appellant cautioned Bird that he should be careful how he brought the brass into his place of business, and in case he was caught he should say he had never sold appellant any brass, and in case appellant should be caught he would say he had never bought any brass from Bird. Later, about the latter part of August, these witnesses went to Dresden, Pettis county, Mo., and took about sixty brass journals from railroad cars standing on a side track. The next morning the brass was taken, by truck, to the defendant's junk yard. It was there unloaded and weighed by an employee of appellant. The witnesses took the sales slip to the office and were informed, by appellant, that he did not have the money at that time to pay them; also that two of the Missouri Pacific detectives had been through his yard and he did not want the witnesses to be seen in his yard. After some maneuvering, the details of which need not be stated, appellant met the witnesses, by appointment, about 1:00 p. m., at a certain street intersection and paid them $16 for the brass. The market value of the brass, however, even as junk, was shown to have been far in excess of $30. The State offered evidence, by employees of the Missouri Pacific Railroad Company, that the railroad cars at Dresden had been inspected by an employee of the railroad on the 19th day of August, and that the journals were then intact. It was further shown that on August 29, when a railroad crew attempted to move the cars, it was discovered that the journals were missing. The State Fair was in session during the week of the 11th to the 18th of August. It was shown on cross-examination that these witnesses, Pugh, Wade, and Bird, had testified in a deposition that the brass was stolen and sold during fair week, or about the third week in August. At the trial they were unable to fix any definite time except to state that it was the latter part of August.

Appellant's defense was that he had not at any time bought brass from the three state witnesses. All of appellant's employees, who had worked for him from August 10 to September 1, covering the dates during which the brass must have been stolen, as testified to by the State's witnesses, testified in appellant's behalf. These witnesses were positive in their testimony that the State's witnesses did not sell any brass at the yard, as claimed; that they did not enter the yard with a truck, and they were not seen about the yard at any time. It was also testified to, by a number of witnesses, that the employee, who was alleged to have filled out the sales ticket, was unable to write; that appellant, Cohen, never came to the office prior to 9 a. m., whereas the State's witnesses had testified that they had delivered the brass at about 8 a. m., and at that time saw appellant at his office. Evidence was also offered showing that appellant's reputation as a law-abiding citizen was good.

A number of assignments of error pertain to the refusal of the trial court to give instructions Nos. 1 and 2 in the nature of demurrers to the evidence. It is urged that the evidence was insufficient to show knowledge, on the part of appellant, that the brass was stolen; also that the State's witnesses contradicted each other and that the evidence on the part of appellant so abundantly demonstrated the falsity of the evidence of the State's witnesses that the case should not have been submitted to the jury.

As to the first point, if the State's witnesses told the truth, appellant's actions and conduct disclosed a guilty knowledge. The State's evidence showed that appellant informed the witnesses he would buy railroad brass; that he informed them, when they delivered the stolen brass, that two railroad detectives had been through his place and he did not want the State's witnesses to be seen in his place of business; that by appointment appellant later met the witnesses at a point out from his place of business and paid them for the brass. The State's witnesses also testified that appellant informed them in case they procured more brass not to bring it to the yard, but to let him know and he would send his truck to meet their truck and haul the brass to the yard. As we stated above, if that evidence be true it justified but one conclusion, and that is, guilty knowledge on the part of appellant. State v. Day (Mo. Sup.) 95 S.W.(2d) 1183, loc.cit. 1184 (1).

The second point, that the evidence on part of appellant was so overwhelmingly in his favor that the trial court should not have submitted the case to the jury, calls upon this court to pass upon the weight of the evidence. It is true that the record discloses that the three State's witnesses, above named, were self-confessed thieves with criminal records. That, however, is not unusual in cases of this character. Only thieves knowingly sell stolen property. The trial court, who observed the witnesses, did not see fit to grant appellant a new trial. We are not overlooking the fact that this court has ordered new trials and discharged defendants upon the ground that the State's evidence was so weak and the witnesses were so thoroughly impeached, or that their testimony was so unreasonable, as to render the evidence unsubstantial. See cases reviewed in State v. Liston, 315 Mo. 1305, 292 S.W. 45; State v. Gregory (Mo.Sup.) 96 S.W.(2d) 47, 51, and State v. Huff, 161 Mo. 459, 61 S.W. 900, 1104. In State v. Gregory we said: "The rule * * * is that before this court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is that the verdict is the result of passion, prejudice, or partiality." If this court were to depart from that rule, it would take upon itself the burden of weighing the evidence in each case, which, under our system of trials, is purely a jury question.

In this case there was not a total failure of evidence. In fact, the State produced three witnesses who testified to the necessary facts to sustain the indictment. That appellant produced an abundance of evidence in his own behalf we readily concede. That, however, does not necessarily render the evidence on part of the State so weak that the necessary inference must follow that the verdict was the result of passion, prejudice, or partiality. And it does not necessarily follow that because the three State's witnesses were self-confessed thieves, and witnesses for appellant testified that their reputation for veracity was bad, this court must disregard their testimony. State v. Nibarger (Mo.Sup.) 98 S.W.(2d) 625, not yet reported [in State report]. In State v. Gregory, supra, we said: "But granting the law in this state is as outlined above, the cases in which this court will set aside a conviction supported by evidence are rare. Where the state's evidence is inherently incredible, self-destructive, or opposed to known physical facts, we are perhaps in as good a position to do so as the trial court. But where it is claimed the testimony is completely impeached by contradictory evidence, we are at a great disadvantage, since we lack the means to knowledge that come through confrontation. About all that can be said is that in such instances we reserve the power to grant relief when the denial of it would shock the sense of justice."

These assignments...