State v. Creeley

• Decision Date: 06 January 1914
• Citation: 254 Mo. 382,162 S.W. 737
• Parties: STATE v. CREELEY.
• Court: Missouri Supreme Court

162 S.W. 737

254 Mo. 382

STATE v. CREELEY.

Supreme Court of Missouri, Division No. 2.

January 6, 1914.

1. RECEIVING STOLEN GOODS (§ 8)—EVIDENCE OF LARCENY.

Testimony of the owner, on a prosecution for receiving stolen goods, that he put the watch under his pillow in his home, and knew nothing about how it was taken away, is, in the absence of countervailing evidence, sufficient proof that it was stolen.

2. CRIMINAL LAW (§ 814)—INSTRUCTIONS— EXTRAJUDICIAL STATEMENTS—EVIDENCE.

Evidence that defendant, charged with receiving stolen property, when applying to H., with whom the thieves had left it, for a small grip containing the property, falsely stated his name, that, when applying to her a few days later for a larger grip left by them with her, he showed her a letter purporting to be from another city, indicating that they were there, when he knew they were in the local jail, and testimony as to other statements by him tending to show he was trying to secrete the property as would one who had stolen it or received it knowing it was stolen warrants an instruction on the law as to extrajudicial statements of defendant tending to establish his guilt.

3. CRIMINAL LAW (§ 781)—INSTRUCTIONS— EXTRAJUDICIAL STATEMENTS.

An instruction, as to extrajudicial statements of defendant tending to establish his guilt, that what he said against himself the law presumes to be true "unless negatived by some other evidence in the cause" is not objectionable as forcing him to take the stand and deny the statements; as such a statement may be negatived in many other ways.

4. CRIMINAL LAW (§§ 763, 764)—INSTRUCTIONS —WEIGHT OF EVIDENCE OR LAW.

When evidence is introduced which, under the statutes or the common law as now existing, is entitled to less or more weight than ordinary evidence, such as extrajudicial statements of defendant tending to establish his guilt, an instruction as to how such evidence must be weighed is proper, and not in conflict with Rev. St. 1909, § 5244, prohibiting the court commenting on the evidence, but permitting it to instruct on any point of law.

5. CRIMINAL LAW (§ 1118)—APPEAL—RECORD —REVIEW.

As regards an assignment that there was error in not granting a continuance when defendant's first attorney withdrew, the bare allegation in the motion for new trial that he did withdraw is no proof of the fact.

Appeal from St. Louis Circuit Court; W. M. Kinsey, Judge.

Dave Creeley was convicted of receiving stolen goods, and appeals. Affirmed.

Defendant appeals from a judgment of the circuit court of St. Louis city, in which court he was convicted and adjudged to serve a term of two years in the penitentiary for the crime of receiving stolen goods. He was charged with receiving a gold watch worth $150, and several other articles of jewelry, which had been stolen from one Henry W. Gildehaus, a resident of St. Louis. Mr. Gildehaus fully identified the property described in the information as belonging to him, but his explanation of how some of it passed out of his possession is vague.

The strongest testimony indicating that any of it was stolen relates to the gold watch. Mr. Gildehaus testified that he placed the watch beneath his pillow about half past 7 a. m. on March 20, 1912, and "missed it" about 8 o'clock p. m. of the same day, but he did not know anything about how it was taken from his premises. The other articles found in defendant's possession were missed by Mr. Gildehaus on the same day. He was not asked, and did not state, whether he gave any one permission to take the watch from his home. In his household were his wife, two sons, and four servants. No witness gave any direct evidence of the larceny. So far as the original theft is concerned, the conviction rests solely on the evidence of the owner, Mr. Gildehaus, that he placed the watch under his pillow in his home and does not know anything about how it was taken away from there. The next time he saw the watch it was at the office of the detectives who recovered it for him. After the watch and other jewelry were missing from the residence of Mr. Gildehaus, they were found in a small grip or hand bag, left in Mrs. Herzog's rooming house in St. Louis by two men named, respectively, Miller and Callahan.

Mrs. Herzog testified that two men rented a room from her on the afternoon of March 20, 1912, and went away leaving the hand bag and a suit case in their room. On March 26, 1912, defendant came to her rooming house and told her his name was J. C. Jones, and asked her for the small hand bag, which contained the jewelry. She gave the handbag to defendant after he had procured another man to identify him as "J. C. Jones." Two or three days later defendant obtained from Mrs. Herzog the suit case. On that trip he showed her a letter, purporting to come from Chicago, thanking her for taking care of the grips and sending her $2 to pay for the key to the room they had rented. The letter was not introduced in evidence. Miller and Callahan had paid their room rent in advance and did not owe Mrs. Herzog anything.

Defendant, testifying in his own behalf, stated that on or about March 6, 1912, he was placed in the St. Louis jail on a charge of larceny, of which he was afterward convicted. That while he was in jail Miller and Callahan were also arrested and placed in the same jail; that on March 26, 1912, defendant told Miller he was about to be released on bond, whereupon Miller requested him to go to Mrs. Herzog's rooming house and get the small grip, or hand bag, which he (Miller) had left there and take out some clothes and send them to him. Defendant further testified that he was trying to carry out this request of Miller when he obtained the grips from Mrs. Herzog; that he did not know the small hand bag contained jewelry until he opened it. Defendant further testified that when a police officer called he gave him the grips and aided the officer in securing the jewelry. He also stated that he could not remember showing Mrs. Herzog a letter purporting to come from Chicago thanking her for caring for the grips; that he told Mrs. Herzog his name was Jones because the newspapers had published an account of his arrest, and he feared she would not let him have the grips if he gave her his true name. He admitted that he told Mrs. Herzog that Miller and Callahan were friends of his, but further acknowledged that they were not, in fact, his friends. Defendant further admitted that he found in the small grip obtained from Mrs. Herzog the watch and other jewelry identified by Mr. Gildehaus, together with three revolvers, a flashlight, and a kit of burglars' tools, but he explained that he did not know what the searchlight and burglars' tools were, and did not know that any of the property had been stolen when he received it. He also stated that he did not remember telling Officer O'Brien that he had sold the watch to a man who had gone to Oklahoma.

Mr. John T. May testified, on behalf of defendant, that he furnished the bond whereby defendant was released from jail on March 26, 1912; that while returning from the jail with defendant the latter stopped at Mrs. Herzog's and procured the small hand bag containing the Gildehaus jewelry; when they reached May's home, defendant opened the handbag, saying: "I must take out some clothes and have them laundered;" that when defendant opened the grip, or handbag, and found the jewelry and other articles he seemed to be surprised, and remarked that he had gotten the wrong grip. On opening the grip, defendant took out and handed to May a "half hose" containing the burglars' tools and three revolvers, remarking at the time: "I would not want it found at my house." Defendant took out the jewelry and placed it in his pocket, saying at the time: "This belongs to those fellows, evidently."

M. J. O'Brien, a detective of the police force of St. Louis, testified that on about April 6, 1912, he went to the home of defendant's father and called for the grip and suit case that had been taken from Mrs. Herzog's rooming house to the residence of Mr. May. At first defendant said that he did not know anything about the grips; but after some conversation he took the officer into his father's house and gave him the grip and hand bag, saying, "Now, here's the grips." Defendant then told the officer that he did not care to talk about it further. Officer Dougherty testified that he saw defendant conversing with Callahan in jail on March 25, 1912.

On being asked where the burglars' tools were defendant replied that he did not know anything about them; that "the grips were empty and did not contain anything that belonged to those men."

After the defendant was arrested and taken to police headquarters he admitted that they were left at the house of Mr. May, his bondsman. The officer found the burglars' tools in May's cistern, and the next morning he asked defendant about the watch and jewelry which he had taken from the small grip, or hand bag. At first, defendant stated that he did not know anything about the jewelry. Later in the same conversation he told the officer that he had sold the watch to a man who had gone to Oklahoma. Subsequently he admitted that he had loaned the watch to one A. J. Dahl, and accompanied the officer to the residence of Mr. Dahl, where the watch was procured. Defendant, according to Officer O'Brien's testimony, did an equal amount of prevaricating about the other articles of jewelry, but upon the urgent request of the officer he gathered up said jewelry and turned it over to the officer.

A. J. Dahl testified that he had known defendant six years; that defendant gave him the watch, stating that it belonged to a particular friend of his, and that he (defendant) did not want to carry it that day as he was going out and might lose it.

For reversal defendant relies upon the alleged insufficiency of the evidence to prove that the watch and other jewelry were stolen from the owner, Mr. Gildehaus, and also...