State v. Drew

• Decision Date: 01 February 1904
• Citation: 78 S.W. 594,179 Mo. 315
• Parties: STATE v. DREW.
• Court: Missouri Supreme Court

78 S.W. 594

179 Mo. 315

STATE v. DREW.

Supreme Court of Missouri, Division No. 2.

February 1, 1904.

LARCENY—POSSESSION OF STOLEN GOODS—ARTICLES FOUND IN ANOTHER'S HOUSE.

1. The mere finding of stolen goods in the house of one having a wife and daughter discloses in him only a constructive possession, and not an exclusive possession which will raise a presumption of his guilt.

2. On a trial for larceny, goods found in the house of another also charged with the crime are not admissible against defendant, no confederacy or conspiracy between them being shown.

Appeal from Circuit Court, Chariton County; Jno. P. Butler, Judge.

Hamp Drew was convicted of burglary and larceny, and appeals. Reversed.

J. C. Wallace, for appellant. The Attorney General, for the State.

GANTT, P. J.

The defendant and one Frank Gamble were charged, in an information filed by the prosecuting attorney of Chariton county, with burglary and larceny of the store of Joseph Miles, in the town of Dalton in said county, on the 19th of May, 1901. A severance was granted, and the defendant duly arraigned at the September term, 1901. At the February term, 1903, defendant was put upon his second trial for this offense, and convicted of both the burglary and larceny, and sentenced to the penitentiary for a term of five years. His motions for new trial and in arrest of judgment were overruled, and exceptions duly saved, and an appeal granted to this court.

The evidence on which this conviction rests is substantially as follows: Mr. Miles, the prosecuting witness, had a general merchandise store in the town of Dalton, Chariton county, on Sunday, the 19th of May, 1901. When he left the store Saturday night the doors were locked and fastened, but the windows had no fastenings. On Monday morning, when Mr. Miles returned to his store, he found a big light in the front door broken, and a lot of empty shoe boxes on the floor, and a lot of dry goods gone. He testified he missed some shoes, worsted goods, tobacco, and some meat. The shoes were branded "V. G." on the box and the shoes. The worsted dress goods were of two colors, brown and of a greenish color. Some percales, red and white striped, were also missing. The goods taken were worth between $50 and $100. A piece of percale was shown the witness, and he testified he "thought" that was taken that night, but on objection this answer was excluded. Other dry goods were exhibited to the witness, but counsel for defendant objected to the identification of these unless the state first established that these were found at the house of defendant. The objection was overruled, and defendant excepted, and Mr. Miles answered they came out of his store and were his goods. Some shoes were also shown the witness, and he said they looked like his, and had the same marks and brands. He testified he got all of the foregoing goods, except the one remnant of percale, out of the house of Gamble. Thereupon defendant by his counsel moved the court to strike out all of the evidence as to the goods obtained from Gamble's house, which motion the court overruled, and defendant duly excepted. He testified he got these goods under a search warrant from the houses of Gamble and defendant some two or three weeks after the burglary was committed. He further testified that defendant said he (Miles) would have to show where defendant got the goods found at his house; that they had got it from Mrs. Cook, who also had a store in the town. On cross-examination Mr. Miles admitted he had testified on a former trial of this case that his store was burglarized on Saturday night, instead of Sunday night as he now stated. That he could not identify the one piece of percale found in defendant's house by any mark, but only by its general appearance. He would not positively say this was a piece of his goods. That he could not state that the goods in his store were exactly like this piece. It was simply a piece of red and white percale he had in his store at that time. When he went to defendant Drew's house he also found a little piece of white goods there. He did not take that at the time, neither did he take this piece of percale. He did not take the percale, because defendant said he got it from Mrs. Cook, and he thought he would see her before taking it. Defendant said he got the white goods also from Mrs. Cook. This piece of white goods and this piece of percale were all he found in defendant's house. He did not claim the white goods, which the evidence of Mrs. Cook and defendant's wife conclusively established came from Mrs. Cook's store. Mrs. Cook testified she sold defendant's wife the white goods on Saturday before the burglary, but did not sell defendant or his wife the percale; that she never had a piece like it in her store. Mr. Veatch, the sheriff, testified he served the search warrant and got the piece of percale at defendant's house. The trunk was locked, and defendant's daughter brought her mother the key to the trunk, and he found this piece of percale in that trunk. Defendant was not present at the time. Witness says that there was a piece of white goods and the percale in his hands when defendant and his wife said they got the goods from Mrs. Cook. Does not think they said either piece particularly. After Mrs. Cook said they did not get the percale from her, an officer went back to defendant's house and got it. Until then Mr. Miles was uncertain that it was his. On the part of defendant the evidence tended to prove that Mrs. Gamble used Mrs. Drew's sewing machine, and as a recognition of their kindness gave the piece of percale to Julia Drew, the 15 year old daughter of defendant, and that it, with the white goods purchased from Mrs. Cook, was in an unlocked bureau drawer at defendant's house when the officer found and afterwards took it. Mrs. Gamble gave this piece to Miss Drew on Saturday before the defendant was arrested—about the middle of June, 1901. There was also evidence that Mrs. Gamble's father bought the goods in Kansas City and gave it to his daughter Various errors are assigned for reversal of the judgment.

1. Among other instructions, the court gave the following: "(2) The court instructs the jury that if you believe from the evidence beyond a reasonable doubt that on or about the 19th day of May A. D. 1901, at the county of Chariton, in the state of Missouri, some one did feloniously and burglariously break into and enter the storehouse and building of Joseph Miles and steal therefrom goods and chattels mentioned in the information, or any of said goods and chattels, and that soon thereafter said goods and chattels, or any part thereof, were found in the exclusive possession of Hamp Drew, then and in that event the law presumes that the defendant is guilty of both burglary and larceny, and unless the defendant has accounted for the possession of said goods to your reasonable satisfaction, or rebutted the presumption arising from the recent possession of said goods, as defined in these instructions, you should find him guilty as charged in the information; but the court instructs you that the defendant may rebut the presumption of guilt arising from recent possession of stolen property, or explain his possession by either direct evidence or attending circumstances or the character or habits of himself by some other mode equally satisfactory as to the innocence of the accused." This instruction is challenged because counsel for defendant insists that the testimony does not show an actual possession by defendant of any of the stolen goods, but a mere constructive possession by reason of the fact that one piece of percale, which the prosecuting witness thought was his because it resembled that which he had in his store, was found in a trunk in the house of defendant, which his daughter testified was given to her only a day prior to the burglary by...