State v. Copeman

• Decision Date: 31 January 1905
• Citation: 186 Mo. 108,84 S.W. 942
• Parties: STATE v. COPEMAN.
• Court: Missouri Supreme Court

84 S.W. 942

186 Mo. 108

STATE v. COPEMAN.

Supreme Court of Missouri, Division No. 2.

January 31, 1905.

LARCENY — CONFIDENCE GAME — STATUTES — APPLICATION — SURRENDER OF MONEY — INTENT — EVIDENCE — STATEMENTS OF CONSPIRATORS — INSTRUCTIONS — APPEAL — PREJUDICE.

1. Rev. St. 1899, § 1898, providing for the punishment of those convicted of stealing, taking, and carrying away the property of another, etc., applies only to the offenses kindred to larceny, and does not repeal either the statutory or common-law offense of larceny.

2. Rev. St. 1899, § 2213, provides that every person who, with intent to cheat and defraud, shall obtain any money or property from another by means of any trick or false representations or pretenses or by any other means, commonly called "the confidence game," etc., shall, on conviction, be punished. Held, that such section applied to a case in which the victim consented to the parting of title and possession to the money obtained, and was not applicable where the property was obtained by a trespass, in which case the person obtaining the same with intent to deprive the true owner thereof was guilty of larceny.

3. Prosecutor was approached by W., who showed him a lock capable of being opened without a key. Thereafter they met defendant, who pretended to be a countryman with a large sum of money, whereupon W. offered to bet dollar for dollar that he could open the lock without a key. Defendant handed W. his money, and W. took out his money, putting it with defendant's, when they turned to prosecutor and asked him how much money he had. Prosecutor took out his money, and W. pulled it out of his hand, handed him the lock, and said, "While [defendant] counts ten, you open the lock." Defendant counted 10, but the lock did not open, whereupon defendant snatched the money which W. handed to him, and, after prosecutor stated that they had robbed him, they departed. Held, that prosecutor never intended to part with the title to his money, and hence the offense constituted larceny, and not obtaining money by a trick or confidence game prohibited by Rev. St. 1899, § 2213.

4. Where, in a prosecution for larceny, there was no evidence that prosecutor had transferred his ownership of the money alleged to have been stolen, or that there was any consent to defendant's conversion of the money, instructions were not erroneous for failure to define the distinction between larceny and obtaining money by false pretenses or trick, etc.

5. Where, in a prosecution for larceny, the jury were told that they must find that defendant did certain acts before they could convict him, an instruction that the intent with which defendant's act was done is one of the facts for the jury to determine from the evidence was not error, as assuming that defendant did some act.

6. Where, in a prosecution for larceny, the conclusion was irresistible, from prosecutor's testimony, that defendant and W. were acting in concert when the offense was committed, statements by W. to prosecutor in defendant's absence were admissible against him.

7. In a prosecution for larceny, the admission in evidence of statements by W. to prosecutor before they met defendant, and before the offense was committed, which had no reference to defendant, was not prejudicial to him.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Charles Copeman was convicted of larceny, and he appeals. Affirmed.

The defendant Charles Copeman and one Riley W. Wilson were indicted by the grand jury of the city of St. Louis at the December term thereof, 1903, for the crime of grand larceny; they being charged with the felonious theft of $45 from one Fred Gillander on or about the 7th day of November, 1903, at the city of St. Louis. The defendants charged were arrested and entered their pleas of not guilty, after which a severance was called for, and the state elected to try Copeman first. On the 12th day of February, 1904, this defendant was placed upon trial, which resulted in a verdict of guilty, and his punishment assessed at two years' imprisonment in the penitentiary. Unsuccessful in his effort to secure a new trial and an arrest of judgment, he brings the case to this court on appeal.

The facts are substantially as follows: Gilbert F. Gillander, a young man of some 19 years of age, came from Boston, Mass., to St. Louis, Mo., on the 7th day of November, 1903. He arrived at the Union Depot at 7 o'clock in the morning, and went to the World's Fair grounds, arriving there about 9 o'clock. While walking through the grounds, he came upon a man by the name of Riley W. Wilson, one of the persons charged with defendant in the commission of the crime. The prosecuting witness had been at the fair grounds but a few minutes when he was approached by Wilson, who asked him if he had a match. Wilson suggested that he also was a stranger in St. Louis, and that they accompany each other through the grounds. Wilson afterwards suggested that they go down by the Chouteau avenue car line. Near the gate at the Chouteau avenue car line they met the defendant, Copeman. He inquired the way to the main gate of the World's Fair, and Wilson answered that they were both strangers, and therefore did not know, and could not tell him. Copeman says: "I am a stranger, too. I have come in from the country, and have sold a car load of horses." And with that statement he pulled out a large roll of money, saying: "I have done very well." Just before they met defendant Copeman, Wilson pretended to discover a lock lying in the dust. He picked it up, and called the prosecutor's attention to the fact that it could be opened by pressing a spring; and, after some comment in reference to it, they passed on until they met defendant, as above stated. After a few words had passed between the three, and Copeman had exhibited his roll of money, Wilson produced his lock, saying at the time, "Here is a lock I have got which I can open without a key." Defendant said, "Well, I will not believe that you can unless you break it with a stone." Wilson asked him how much he would bet that he couldn't. Wilson says, "We will bet a box of cigars I cannot open this lock without a key." They kept on talking about betting, and finally Wilson offered to bet dollar for dollar that he could open it without a key. Defendant then handed Wilson his money, and Wilson took out his money and put it with the defendant's, and they turned around to the prosecuting witness and asked, "How much money have you?" The prosecuting witness took out his money, and Wilson pulled it out of his hand, at the time saying, "Forty-five dollars." He handed him the lock, and he says, "While [defendant] counts ten, you open the lock." The defendant counted 10, but the lock did not come open. Defendant snatched at the money, and Wilson handed it to him; the witness at the time saying, "You have robbed me." After a few minutes a third man came up and asked them what they were doing. He says, "You are gambling," and he held them for a few minutes while defendant ran off with the money. The prosecuting witness was afterwards released, and reported his loss to the police department. Shortly afterwards defendant was arrested and identified by the prosecuting witness. The defense was that of an alibi. In this connection the defendant testified substantially as follows: "I am forty-two years old. On the 7th day of last November I was at 2519 North Spring avenue. I had been stopping there about six weeks, as near as I can remember. At that time I was engaged in the restaurant business with George Bolton at No. 9 North Nineteenth street. I owned a restaurant, however, previous to that. George Bolton and my daughter were there with me that day. Mrs. Adams was there until the time I left. I got up that morning about fifteen minutes before breakfast — I will say about seven o'clock — and stayed at my room most all day. I left the house, perhaps, about half past one. My daughter went with me down to 1505 Pine street. I stayed there perhaps two hours, and then went to the fish market to get fish. I returned about a quarter after four. It was on Saturday. I was not at the World's Fair grounds on the 7th day of November, 1903. I did not see Gillander, who has testified on the stand in this case, that day. I never saw him previous to my arrest. On that day I had on the same suit of clothes that I am now wearing, and the same suit that I wore when I was arrested. I had nothing to do, in any shape, form, or manner, with the taking of this man's money, entering into the lock game, or anything of the kind, on the 7th of November or at any other time. I saw Gillander at the holdover after I was arrested. He came in with the officer and looked around in the cell where I was at, and the officer stood there as if watching him, to see if he identified me, and he said, `That is the fellow there — the tall fellow.' And he didn't seem to identify me, and then he said, `Bring him out,' and he looked at me; and I couldn't understand what he said, and he didn't seem to think it was him; and the officer said, `What do you do?' And I said, `I run a restaurant;' and he said, `Take his hat off;' and he took my hat off and turned me around, and he said, `That is the man.' Gillander never opened his mouth after that at all. The officer then said, `Take him back.' On the 7th day of November last I had a very serious case of boils, and have had them all the time ever since I have been in jail. I have not been well." As to the defendant being in his room on the 7th of November, up to the hour of 1:30 p. m. he was corroborated by his daughter Mrs. Lizzie Adams, Percival Adams, and Geo. W. Bolton.

At the close of the evidence the defendant...