State v. Denison, 38862.
| Citation | 178 S.W.2d 449 |
| Decision Date | 06 March 1944 |
| Docket Number | No. 38862.,38862. |
| Parties | STATE v. ROY ELBERT DENISON, Appellant. |
| Court | United States State Supreme Court of Missouri |
v.
ROY ELBERT DENISON, Appellant.
[178 S.W.2d 451]
Appeal from Jefferson Circuit Court. — Hon. E.T. Eversole, Judge.
REVERSED AND REMANDED.
Albert S. Ennis for appellant.
(1) The evidence was not sufficient in law to sustain the verdict of the jury. State v. DeWitt, 90 S.W. 77, 191 Mo. 51; State v. Duncan, 50 S.W. (2d) 1021; State v. Drew, 78 S.W. 594, 179 Mo. 215; State v. Belcher, 37 S.W. 800, 136 Mo. 135. (2) Instruction 3 is erroneous because, before this instruction should be given, there should be some evidence of the possibility of the defendant committing larceny without having committed the burglary. State v. Bates, 81 S.W. 408, 182 Mo. 70. (3) The court erred in giving Instruction 5 at the request of the State because, the instruction does not require the possession to be recent. (4) It singles out one circumstance and gives undue prominence to certain testimony and evidence, when no instruction, whatever, should be given as to possession of stolen goods being one circumstance. State v. Swarens, 241 S.W. 139, 294 Mo. 934. (5) It is an undue comment on the evidence. State v. Duncan, 50 S.W. (2d) 1021; State v. Morney, 93 S.W. 1117, 196 Mo. 43; State v. DeWitt, 90 S.W. 77, 191 Mo. 51. (6) Instruction 7 was erroneous for the reason that there was no evidence to support the instruction. State v. Duncan, 50 S.W. (2d) 1021; State v. Morney, 93 S.W. 1117, 196 Mo. 43. (7) The court failed to instruct the jury on petit larceny. Sec. 4070, R.S. 1939; State v. Weinberg, 150 S.W. 1069; State v. Bevins, 43 S.W. (2d) 432; State v. Conway, 145 S.W. 141; State v. Enochs, 98 S.W. (2d) 689. (8) In a criminal prosecution, it is the duty of a trial court to give all necessary instructions whether they are requested or not. State v. Branstetter, 65 Mo. 149; State v. McBroom, 141 S.W. 1120; State v. Starr, 148 S.W. 862; State v. Weinberg, 150 S.W. 1069, 245 Mo. 546. (9) An assignment in motion for new trial that the court erred in failing to instruct the jury upon the whole law governing the case is sufficient to call the court's attention to necessary instructions the court failed to give in a burglary and larceny case, but the Supreme Court may reverse such a case though the question should be presented there for the first time. State v. Conway, 145 S.W. 441. (10) The verdict was the result of passion and prejudice of the jury due to the fact that the defendant did not take the witness stand to testify. State v. Christian, 161 S.W. 736.
Roy McKittrick, Attorney General, and B. Richard Creech, Assistant Attorney General, for respondent.
(1) That part of appellant's assignment Number Six, "Because the verdict was a result of passion and prejudice on the part of the jury and was rendered because the defendant did not take the witness stand... ." State v. Copeland, 71 S.W. (2d) 746; State v. Lloyd, 263 S.W. 212; State v. Trainer, 80 S.W. (2d) 131, 336 Mo. 620; State v. Curtis, 324 Mo. 58, 23 S.W. (2d) 122; Sec. 4082, R.S. 1939; State v. DeWitt, 186 Mo. 61, 84 S.W. 956. (2) Appellant's assignment Number Seven, "Because the court erred in refusing to permit State witness Officer O'Connor, who made the arrest, to answer on cross-examination, question asked by defense attorney" is not well taken. State v. Parker, 12 S.W. (2d) 428; State v. Perkins, 92 S.W. (2d) 634. (3) The court did not err in overruling defendant's demurrer at the close of the State's case. State v. Barr, 78 S.W. (2d) 104, 336 Mo. 300. (4) The court did not err in refusing defendant demurrer at the close of all the evidence. Therefore, assignment Number Eleven is not well taken in appellant's motion for new trial. State v. Culbertson, 74 S.W. (2d) 375; State v. Swarens, 294 Mo. 139, 241 S.W. 934; State v. Tisher, 119 S.W. (2d) 212; 4 Mo. Law Review, p. 71; State v. Hodge, 50 N.H. 510; State v. Jenkins, 213 S.W. 796; State v. Nichols, 130 S.W. (2d) 485. (5) Instruction 1 given by the court is a proper instruction, therefore, assignment Number Thirteen is not well taken. State v. Bush, 119 S.W. (2d) 265, 342 Mo. 959; State v. Martin, 56 S.W. (2d) 137. (6) Assignment Number Fourteen of appellant's motion for new trial is not well taken. State v. Hecox, 83 Mo. 531; State v. Hutchinson, 111 Mo. 257; State v. McHenry, 207 S.W. 808. (7) Instruction 3 was a proper instruction, therefore, appellant's assignment Number Fifteen was not well taken. State v. Culbertson, 74 S.W. (2d) 375. (8) Appellant's assignment Number Seventeen alleging that the court erred in giving Instruction Number Five is not well taken. State v. Swarens, 294 Mo. 139. (9) Replying to the new matter set up in appellant's brief and argument. Appellant abandoned certain assignments in motion for new trial. State v. Mason, 98 S.W. (2d) 574; State v. Kenyon, 126 S.W. (2d) 245, 343 Mo. 1168; State v. Pearson, 270 S.W. 347. (10) Trial court did not err in not giving instruction on petty larceny on his own motion. State v. Londe, 132 S.W. (2d) 501; State v. Taylor, 320 Mo. 417, 8 S.W. (2d) 29; State v. Foley, 119 S.W. 397, 220 Mo. 86; State v. Enochs, 339 Mo. 953; Sec. 4456, R.S. 1939; State v. Wells, 234 S.W. 825; State v. Sprague, 149 Mo. 409, 50 S.W. 901; State v. Norman, 101 Mo. 520, 14 S.W. 661, 10 L.R.A. 35, 20 Am. St. Rep. 623; State v. Thomas, 137 Mo. l.c. 623, 39 S.W. l.c. 83; State v. Murphy, 141 Mo. 267, 42 S.W. 936. (11) Verdict not result of passion and prejudice. State v. Christian, 161 S.W. 736, 253 Mo. 382.
ELLISON, J.
The appellant was convicted of grand larceny in the circuit court of Jefferson county and his punishment assessed at two years imprisonment in the penitentiary. There were 21 assignments of error in his motion for new trial in the circuit court. Some of these are too indefinite to meet the requirements of the new trial statute, Sec. 4125.* In his brief he makes some assignments of error which were not presented in the motion. We shall presently take up in order all the assignments on appeal that are open to review. But first, we state the evidence.
The prosecuting witness, J.W. Harbour, operated a retail lumber yard at Herculaneum in Jefferson county. On or about October 18, 1941, the office was burglarized by breaking the glass in a side door and turning the lock inside, A considerable amount of merchandise and office equipment was stolen, the latter including a second-hand out-of-order Burroughs adding machine which he had recently purchased for $10, and a second-hand Woodstock typewriter bought a few weeks before for $15. On February 20, 1942, the appellant's premises at 2425 north Vandeventer Avenue in the City of St. Louis were searched and the adding machine was found there. Appellant was arrested that day. About the same time the officers located the typewriter in the home of Miss Wilma Lawson, 4046 Manchester Avenue, St. Louis. She was a life-long acquaintance of appellant and had bought the typewriter from him for $20 a few days before Christmas. The information filed by the prosecuting attorney charged appellant with both burglary and larceny, but the latter charge covered only the adding machine and typewriter — not the stolen merchandise or other office equipment, which never was found so far as this record shows.
On his premises at the Vandeventer Avenue address the appellant and his wife conducted a confectionery, soft drink, lunch and tobacco store on the first floor and resided on the second floor. There was an old woodshed behind the store building in which officer O'Connor found the adding machine. There is no evidence as to how the police came to search the premises, or how or why they had previously connected him with the burglary and larceny. There was no direct evidence that he had ever been at the scene of the crime. Efforts were made to discover fingerprints about the lumber yard office
but none could be found that were legible, though some prints of rubber heels were noticed but these were not shown to have been connected with the appellant. The foregoing constituted the State's whole showing on its case in chief. The appellant asked an instruction in the nature of a demurrer to the evidence which the court refused to give.
The defense presented as a witness a sixteen year old boy named Herschel Colyer. He had been a clerk in the appellant's store for about a year, including the period between December, 1941 and February, 1942. His testimony was that the week before Christmas, 1941, a "guy" (whom he later described) came in bringing the typewriter and adding machine, one at a time, and his employer went to the cash register and gave the man some bills (currency). He identified both machines (then before the jury) and said they were left in the "living room." A couple of days later the typewriter was gone. But the adding machine remained two or three weeks — on cross-examination he estimated the time as a "couple of months." The witness said the appellant tried to fix the machine but could not make it work. He thought it was then sold; but later heard "them" (meaning the appellant and his wife) say "the law took it."
Appellant's wife testified they had been operating the confectionery for two years. She remembered the typewriter and adding machine were brought to the store just before Christmas, although she wasn't there at the time. She and her husband each worked there eight hours each day, and they usually closed up about 11 P.M. or midnight. In the middle of October, 1941, her husband had the night shift. She could not recall that he had been away from home at night during that month. He rarely left except on errands...
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