State v. Conway

• Decision Date: 25 September 1941
• Docket Number: 37517
• Citation: 154 S.W.2d 128,348 Mo. 580
• Parties: The State v. Ruth Conway and Marie Smith, alias Marie Henslee, Appellants
• Court: Missouri Supreme Court

154 S.W.2d 128

348 Mo. 580

The State v. Ruth Conway and Marie Smith, alias Marie Henslee, Appellants

No. 37517

Supreme Court of Missouri

September 25, 1941

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Reversed and remanded.

Homer D. Wampler, Jr., and Lincoln & Lincoln for appellants.

(1) Over the objection of defendants the court allowed the prosecuting attorney in his argument to argue to the jury that the defendants had not testified at the preliminary hearing. Same being a direct violation of Section 3693 Revised Statutes of Missouri, 1929. State v Swisher, 186 Mo. 1; State v. Murray, 126 Mo. 615; State v. Mullins, 101 Mo. 514; Commonwealth v. Brown, 121 Mass. 69; State v. Shipley, 174 Mo. 512. (2) The court erred in giving its instruction on circumstantial evidence because it failed to instruct the jury in said instruction that the circumstances proved must be consistent with each other as well as consistent with the defendants having committed the act. State v. Salmon, 216 Mo. 466; State v. Gray, 163 Mo.App. 696; State v. Moxley, 102 Mo. 374.

Roy McKittrick, Attorney General, and Olliver W. Nolen, Assistant Attorney General, for respondent.

(1) Points 1, 2 and 3 as alleged in appellants' motion for new trial are too indefinite and uncertain to be considered by this court. State v. Wright, 112 S.W.2d 571; State v. Williams, 108 S.W.2d 177; State v. Shawley, 67 S.W.2d 74, 334 Mo. 352; State v. Miller, 117 S.W.2d 353; State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962. (2) It was not an error for the court to refuse to admit letters written by the defendant to Hazel Dodd. The letters were not relevant and were not competent to impeach the prosecuting witness Wallman because on an immaterial matter. State v. Murphy, 201 Mo. 691; State v. Taylor, 135 Mo. 109; State v. Barker, 296 Mo. 51; State v. Valle, 196 Mo. 29. (3) The demurrers as to both appellants were properly overruled. State v. Bresse, 33 S.W.2d 919; State v. McGee, 188 Mo. 401; State v. Martin, 66 S.W.2d 137; State v. Bridges, 123 S.W.2d 67; State v. Tisher, 119 S.W.2d 212; State v. Cunningham, 33 S.W.2d 930; State v. Wagner, 312 Mo. 124. (4) There was no error in the testimony of Johnnie Jones and in permitting the State to show that defendants had not testified at the preliminary hearing. State v. Gilreath, 267 S.W. 880; State v. Mabry, 324 Mo. 239, 22 S.W.2d 239; State v. Hart, 309 Mo. 77; Sec. 4082, R. S. 1939; State v. Greer, 12 S.W.2d 87. (5) Instruction 1 was proper. The instruction on circumstantial evidence was proper. State v. Reppley, 278 Mo. 333; State v. Martin, 56 S.W. 137; State v. Wagner, 312 Mo. 124. (6) Allegations as to bias and prejudice of the jury do not prove themselves. State v. Golden, 51 S.W.2d 91; State v. Jackson, 102 S.W.2d 613.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

Marie Smith and Ruth Conway appeal from a conviction and sentence of two years' imprisonment for grand larceny.

Briefly, the State's evidence was that Paul Wallman, a traveling salesman, was in Springfield on March 18, 1940, staying at the Seville Hotel. About ten o'clock in the evening he was walking around the streets of the business section and was "picked up" by the appellants who drove him around town in a Chevrolet coupe. After a while the three of them went to a tap room on Commercial Street and had at least one drink. Someone suggested that they go to a tourist cabin where they could have a radio. Wallman purchased a half pint of whiskey and they drove out on Highway 66 to Lurvey's. While he rented a cabin and made arrangements for some coca cola and ice the women parked the car in front of the cabins.

They mixed some drinks and played the radio. Wallman hung his coat, with his wallet containing sixty-two dollars in bills in his inside pocket, on the back of a chair. Soon, one of the women removed her dress and he took his shirt off. He went to the bathroom and as he came out Marie Smith was going out the front door. He asked her where she was going and she stated that she would be back in a minute. He then announced that if the party was breaking up they would all go. He put on his coat and immediately missed his wallet.

As Marie Smith got in the car he demanded his wallet and she informed him that she did not have it. As he stood outside the car she put the key in the ignition and he grabbed it and started for the cabin office. He looked back and Ruth Conway was running from the cabin towards the car. One of them yelled asking him to come back and said, "We will give you your wallet," but as he approached the car they drove away.

He looked around the cabin for his wallet but could not find it. In front of the cabin door he found a lady's shoe.

Wallman went to his hotel and then to the police station where he reported the occurrence. The car key, together with another key, was on a small chain attached to a cylinder. He gave these and the shoe to the police. The cylinder contained Ruth Conway's driver's license. The other key on the chain unlocked the front door to Marie Smith's home. The shoe fitted Ruth Conway but she denied ownership of it. A day or two afterwards the appellants took the Chevrolet coupe to the S & M Garage and had all the locks on it changed.

The appellants were arrested and made written statements to the police, in which they claimed that Wallman had approached them as they sat in their car and suggested that the three of them get drunk together; that they went to a tap room, but after a few drinks got into an argument as to whether or not the women were too drunk to drive and Wallman went after his own car and they did not see him again.

The appellants testified in circuit court and admitted that they were in the cabin with Wallman but denied that they had taken his wallet and money. They claimed that he had made unnatural advances to Marie Smith, causing them to leave the cabin, and that when he saw they were getting in the car he kicked Marie and forcibly took the keys from her. They admitted changing the locks on the car but said they did so because Wallman had a set of keys and they were afraid he would later get the car. In explanation of their denial to the police that they had been in the cabin with Wallman Ruth said that she didn't want her estranged husband to know she had been in a cabin with a traveling salesman and Marie was afraid of a jealous lover.

The appellants assign as error the overruling of their demurrers, especially as to Ruth Conway, for the stated reason that the evidence as to her does not even rise to the dignity of circumstantial evidence. Some of the many assignments in their motion for new trial on this subject to the effect that the verdict is against the evidence and the law, etc., are not sufficient to preserve the questions for review by this court. [State v. Wright, 342 Mo. 58, 112 S.W.2d 571; Sec. 4125, R. S. Mo. 1939 (Laws Mo. 1939, p. 358).]

The assignment that the evidence as to Ruth Conway was purely speculative and did not even rise to the dignity of circumstantial evidence connecting her with the larceny may be sufficient. But, even so, a mere recital of the evidence demonstrates that the jury could reasonably find that the appellants were acting jointly; aiding, assisting and abetting one another, and that they were guilty of the larceny as charged. Even if the evidence may be construed to be wholly circumstantial the facts and circumstances are consistent with the defendants' guilt and inconsistent with their innocence and, therefore, ample to support their conviction. [State v. McGee, 188 Mo. 401, 87 S.W. 452; State v. Bresse, 326 Mo. 885, 33 S.W.2d 919; State v. Kelley (Mo.), 106 S.W.2d 486.]

It is claimed that the court erred in giving Instruction No. 1 for the reason that the information charges the defendants with stealing money belonging to Wallman while the instruction submits larceny from the person, which is a submission broader than the information and of a crime not charged in the information.

We think this objection more facetious than serious. The instruction says that if the jury find that the defendants "did steal, take and carry away from the witness, Paul Wallman, any sum of lawful money of the United States, amounting to $ 30.00 or more, and that the same was the property of Paul Wallman," etc., while the information charges that the defendants did "steal, take and carry away $ 62.00 . . . of the goods, chattels and personal property of one Paul Wallman," both of which substantially follow the wording of the larceny statute whether the theft be from the person or otherwise. [Secs. 4456, 4459, R. S. Mo. 1939.] The instruction, as a whole, is such as has been generally approved in this type of case. [State v. Reppley, 278 Mo. 333, 213 S.W. 477; State v. Wagner, 312 Mo. 124, 279 S.W. 30; State v. Martin (Mo.), 56 S.W.2d 137.]

It is also urged that the court's instruction on circumstantial evidence was prejudicially erroneous because it failed to charge "that the circumstances proved must be consistent with each other, as well as consistent with the defendants having committed the act." Relying on State v. Moxley, 102 Mo. 374, 14 S.W. 969, they insist that the instruction should state that the facts proven must exclude "to a moral certainty every other reasonable hypothesis but that of guilt." In short, appellants seem to argue that unless a circumstantial evidence instruction contain certain terminology it is erroneous. State v. Moxley, supra, does not hold that certain definite words must be used in such an instruction. That was a homicide based solely on circumstantial evidence and the court not only did not give a circumstantial evidence instruction but refused what the court held to be an apt and...