State v. Dowling

• Decision Date: 13 June 1950
• Docket Number: No. 1,No. 41745,41745,1
• Citation: 230 S.W.2d 691,360 Mo. 746
• Parties: STATE v. DOWLING
• Court: Missouri Supreme Court

Page 691

230 S.W.2d 691

360 Mo. 746

STATE v. DOWLING.

No. 41745.

Supreme Court of Missouri, Division No. 1.

June 13, 1950.

Wm. Waye, Jr., St. Charles, for appellant.

J. E. Taylor, Attorney General, David Donnelly, Assistant Attorney General, for respondent.

HYDE, Judge.

Defendant was found guilty of grand larceny, sentenced to four years in the penitentiary, and has appealed.

Defendant was charged jointly with two other women of stealing goods of Chester Stores, Incorporated, from its store in St. Charles known as the Famous, but was granted a severance and tried separately. The record shows verdict, allocution, judgment and sentence in proper form. It is contended that defendant was entitled to a directed verdict, that the information was fatally defective and that there was error in the instructions.

Defendant contends that the information will not support a conviction because it did not sufficiently describe the property alleged to have been stolen. The description in the information was as follows: 'One Ladies Coat of the reasonable value of Fifty-five Dollars ($55.00), one Kolinsky Scarf of the reasonable value of Sixty-nine Dollars and ninety-eight cents ($69.98), three silk scrafs of the reasonable value of Two dollars and ninety-eight cents each, eleven pair of ladies hose of the reasonable value of One Dollar and ninety-eight cents ($1.98) each, one purse of the reasonable value of Five Dollars ($5.00) and three billfolds of the reasonable value of One Dollar each, all of the aggregate value of One Hundred Sixty-three dollars and Seventy cents ($163.70) of the goods and chattels of Chester Stores, Incorporated, a corporation.'

Defendant cites State v. Jeffords, Mo.Sup., 64 S.W.2d 241, 242, in which we held the information failed to sufficiently describe the property alleged to have been stolen. However, in that case, 'the information only charges the property stolen as 'merchandise to the value of about forty dollars'', which of course referred to no specific article of any kind. The statement was made in that case that the property must be described with sufficient particularity to enable the defendant 'to plead the judgment rendered thereat in bar of a subsequent prosecution for the same offense, without other proof.' This statement was reconsidered in State v. North, 337 Mo. 470, 85 S.W.2d 46, and we held that it was too broad but that eliminating the words 'without other proof' it was correct. In the North case, we cited a number of cases showing that it has uniformly been held that descriptions of same character as in this case were sufficient. See also State v. Robinson, Mo.Sup., 184 S.W.2d 1004; State v. Page, Mo.App., 192 S.W.2d 577. We, therefore, hold that the description in this information was sufficient.

Defendant's contention that she was entitled to a directed verdict is that the evidence was not sufficient to identify the goods found by the police as those taken from defendant's store or to show they were stolen by her or by any one acting with her for that purpose; and also that there was not proof that the owner of the goods was a corporation. Sec. 4077, R.S.1939, Mo.R.S.A., authorizes proof of corporate existence to be shown by parol evidence of general reputation, when it is material. State v. Willhite, Mo.Sup., 159 S.W.2d 768; State v. Jackson, 90 Mo. 156, 2 S.W. 128; State v. Cheek, 63 Mo. 364. The trial court erroneously excluded such evidence in this case. However, the manager of the store did testify that the store was owned and operated by the Chester Stores of Nashville, Tennessee, and that it was known as Chester Stores, Incorporated. We think this was sufficient under the circumstances of this case or at least that there was no prejudicial error against defendant in failing to require more, when upon defendant's objection the manager was not permitted to answer the direct question: 'Do you know of your own knowledge whether or not Chester Stores is incorporated?' As we said in State v. Hedgpeth, 311 Mo. 452, 278 S.W. 740, 741: 'Proof of the appellant's guilt of the crimes charged, or either of them, did not depend upon establishing the fact of the oil company's incorporation, but upon the question as to whether the appellant feloniously broke into the premises of another, and, to establish the larceny, that he stole from such premises the property described in the charge. While the corporate existence of the oil company was alleged in the information, it was a mere matter of description to enable the owner to be more readily identified. Whether, therefore, the owner of the premises be a corporation, a partnership, or an individual is not material to the appellant's defense or in the establishment of his guilt.' See also State v. Carson, 323 Mo. 46, 18 S.W.2d 457; State v. Parker, 324 Mo. 734, 24 S.W.2d 1023; Miller v. United States, 8 Cir., 295 F. 602; State v. Latham, 344 Mo. 74, 124 S.W.2d 1089. We hold that this contention is without merit.

Defendant did not testify and offered no evidence. The following facts were shown by the State. The manager, Mr. Kleyman, saw defendant and two other women together in his store about midafternoon. They had some large cardboard suit boxes. (At least one box was fixed so it would upon at one end.) Kleyman said he was arranging a show window display at the time. When he went to get a Kolinsky (fur) scarf, which had been hanging on a rod about 15 feet away, it was missing. He found that none of his salespeople had sold it, so he went out on the street and saw defendant and the two other women walk to a car and get in it. He saw them looking at something in the car so he called the police. About the time the police came, the women left the car and went into another store. Kleyman then looked in the car and saw a coat, the fur piece, several silk scarves, several pairs of nylon hose, a handbag and several purses. He identified these articles at the police station as belonging to his store. These articles, as well as the cardboard suit boxes, were in evidence at the trial; and Kleyman testified these articles belonged to his store. The coat was from a line of merchandise that was handled by no other store in St. Charles. There were tags and labels on some of the articles which Kleyman said were the kind used in his store and that the markings on them were put on by his salespeople under his direction.

On cross-examination he admitted that other stores throughout the country handled similar merchandise and that he did not see defendant or any one else take the articles. While he said as to being positive about the identity of the silk scarves 'I wouldn't have anything to prove it on there', nevertheless he still said that they belonged to his company, that they were the same pattern and same styles as those they had; and that the same thing was true as to the stockings and purses. Other employes of the store testified that defendant and the two other women were in the store on the afternoon when the goods were missed. The manager of another store (Mr. Eddens), where the automobile was parked, saw the women take a large box, shopping bag and other articles to it.

The Chief of Police, who made the arrest, said he followed the women into another store to arrest them, after seeing them get out of the car, when he found out what was in the car. All the articles found in the car were put in sealed boxes and marked by the officers, in the presence of the Sheriff, and were kept locked in a vault until produced at the trial. The seals were not broken until that time. The Chief said one of the women said that they had borrowed the car. Other officers said that defendant told them 'a friend of hers let her have it to use,' and that proved to be true when...