State v. Enochs
| Decision Date | 17 November 1936 |
| Docket Number | No. 34703.,34703. |
| Citation | 98 S.W.2d 685 |
| Parties | THE STATE v. CHARLES ENOCHS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. — Hon. Ralph Hughes, Judge.
REVERSED AND REMANDED.
Sam Modica and Anthony J. Miceli for appellant.
(1) Because the verdict of the jury is against the evidence and there is no substantial evidence on which the jury could base their findings from the evidence. State v. Davis, 84 S.W. (2d) 633; State v. Long, 80 S.W. (2d) 158; State v. Dilley, 76 S.W. (2d) 1087; State v. Duncan, 50 S.W. (2d) 1023; State v. Pritchett, 39 S.W. (2d) 794, 327 Mo. 1143; State v. Nagle, 32 S.W. (2d) 601; State v. McMurphy, 25 S.W. (2d) 82; State v. Matticker, 22 S.W. (2d) 647; State v. Perkins, 18 S.W. (2d) 6; State v. Rutledge, 262 S.W. 718; State v. Swarens, 241 S.W. 934; State v. Casey, 247 S.W. 114; State v. Bass, 157 S.W. 782; State v. Archer, 6 S.W. (2d) 914; State v. Goldstein, 225 S.W. 913; State v. Edmundson, 218 S.W. 867; State v. Wheaton, 221 S.W. 28; State v. Nave, 222 S.W. 745; State v. Adkins, 222 S.W. 431; State v. Liston, 292 S.W. 45; State v. Francis, 199 Mo. 693; State v. Morney, 196 Mo. 483; State v. Crabtree, 170 Mo. 642; State v. Ruckman, 161 S.W. 708; State v. Jones, 106 Mo. 313; State v. Scott, 177 Mo. 665. (2) Because the court erred in failing to instruct the jury on petit larceny when the evidence warranted such instruction. Secs. 3681, 3694, R.S. 1929; 25 Cyc., pp. 153, 154; State v. Johnson, 6 S.W. (2d) 900; State v. Lambert, 300 S.W. 709, 318 Mo. 705; State v. London, 295 S.W. 549; State v. Cantrell, 234 S.W. 802, 290 Mo. 232; State v. Starr, 148 S.W. 867, 244 Mo. 161; State v. Harris, 134 S.W. 536, 232 Mo. 317; State v. Hoag, 134 S.W. 510; State v. Lackey, 132 S.W. 602, 230 Mo. 707; State v. Thompson, 137 Mo. 623, 39 S.W. 83; State v. Palmer, 88 Mo. 568; State v. Stewart, 34 S.W. (2d) 101; State v. Stallings, 38 S.W. (2d) 914; State v. Hutchinson, 111 Mo. 264; Hardy v. State, 7 Mo. 304. (3) The court erred in failing to instruct the jury upon the defense of an alibi when there was substantial evidence on which to base such an instruction. Sec. 3681, R.S. 1929; State v. Belvins, 43 S.W. (2d) 432; State v. London, 295 S.W. 549; State v. English, 274 S.W. 470, 308 Mo. 695; State v. Lackey, 132 S.W. 602, 230 Mo. 707.
Roy McKittrick, Attorney General, and William Orr Sawyers, Assistant Attorney General, for respondent.
(1) The verdict finding the defendant guilty of felonious larceny was not dependent on the jury finding the defendant guilty of burglariously entering the filling station. State v. Nicholas, 121 S.W. 12, 222 Mo. 431; State v. Wells, 234 S.W. 827; State v. McNeese, 284 S.W. 786. (2) Assignments of error not raised in the motion for new trial are not properly raised by appellant in his brief when said assignments are not jurisdictional. Sec. 3735, R.S. 1929; State v. Taylor, 8 S.W. (2d) 35, 320 Mo. 417; State v. Foley, 119 S.W. 397, 220 Mo. 89.
The appellant was convicted of grand larceny in the Circuit Court of Clay County on change of venue from Carroll County and his punishment assessed by the jury at imprisonment in the penitentiary for a term of two years. He has filed a brief in which the errors assigned are: that there was no substantial evidence to support the verdict; that the court failed to instruct on petit larceny; and also failed to instruct on alibi.
The evidence, briefly, was as follows. The gasoline filling station of Edgar F. Schmidt at Carrollton, Missouri, was broken into during the night of November 26, 1933. When called by the sheriff about four-thirty or five o'clock A.M., Mr. Schmidt found certain of his personal property had been taken therefrom. The articles of property so taken, their value as alleged in the information, and the wholesale price, the retail price, and the value thereof as testified to by Mr. Schmidt, were as follows:
Value alleged Value testified
in information Wholesale Retail to
price price by owner
9½ gallons Prestone $28.00 $22 or $23 $28.50 $28.50
10 pound can of Polarine cup
grease 2.50 1.75 2.25 1.75
1 wrecking bar .75 ..... ...... about .50
______ __________ ______ _________
$31.25 $30.75
About four o'clock A.M. the same night, Joe Brock and Roy Holt, police officers of Excelsior Springs, Missouri, saw the appellant and one Carl Scott driving out of a blind alley near the post office in that city, in a Chevrolet coupe. The officers stopped the two men and questioned them. In the automobile were found some cartons of cigarettes, boxes of cigars, a spark jumper used to start and operate a locked automobile without the ignition key, a small radio, and the aforesaid cans of Prestone, Polarine cup grease and wrecking bar belonging to the prosecuting witness Schmidt. On one or both of the cases containing the cans of Prestone was a shipping tag marked "Edgar Schmidt, Carrollton, Missouri." The appellant told the officers he had been to his home in Moberly, Missouri, and had got his cargo there. The inference from the testimony is that the police officers, taking the cue from the shipping tag on the Prestone cases, called the sheriff at Carrollton, who thereupon inspected Schmidt's filling station and concluded a burglary had been committed. The appellant and Scott were taken back to Carrollton where the appellant later told the sheriff that on the night in question he was in Moberly visiting his aunt.
The defendant did not testify in his own behalf, nor did Scott who was apprehended with him. But he produced two alibi witnesses, Albert Gibbs and Marie Grantello, who swore that on the night of the burglary they were in Richmond, Missouri, at a soft drink parlor, and that the appellant was there from about eleven o'clock until two o'clock in the morning when they left. Shortly before their departure Scott borrowed from the appellant the keys to his automobile and went out, stating he had a date somewhere. We take judicial notice of the fact that Richmond is thirty miles west of Carrollton where the burglary occurred and that Excelsior Springs is seventeen miles west of Richmond, or forty-seven miles from Carrollton, all these towns being on State Highway No. 10.
The court gave an Instruction, No. 5, on burglary, and an instruction, No. 6, on grand larceny, which told the jury that if they found the appellant burglariously broke into the filling station with the intent to steal the goods, chattels and valuable things kept therein, belonging to Schmidt; and that after so breaking and entering the filling station the appellant did feloniously steal, take and carry away with the intent to convert the same to his own use, the Polarine, Prestone and wrecking bar aforesaid, of the aggregate value of $31, or of any value whatever, then they should find the defendant guilty of grand larceny and assess his punishment at imprisonment in the penitentiary for a term of not less than two nor more than five years in addition to the punishment if any, for the burglary.
It will be observed this instruction required the jury to find the larceny was committed in connection with a burglary, and authorized a conviction if the property taken was of any value. No instruction on petit larceny was given, and no instruction on grand larceny requiring the jury to find the value of the property stolen was $30 or more. The jury acquitted the appellant of the burglary, but found him guilty of grand larceny.
I. Appellant contends there was no substantial evidence to support the verdict. Cases are cited which hold that when a conviction for a felony rests wholly on circumstantial evidence, the circumstances proven must be consistent with each other and with the hypothesis of guilt, and inconsistent with any rational hypothesis of innocence. In particular the appellant relies on State v. Dilley, 336 Mo. 75, 76 S.W. (2d) 1085, where, as here, the defendant and another man were found in possession of stolen property not long after the larceny, and there was no direct evidence that the defendant stole the property or that he was at or near the scene of the crime about the time it was committed. In the Dilley case we held the circumstances were equally consistent with the theory that the defendant was merely helping the actual thief to dispose of the property.
But we cannot take that view in this case. The State's evidence here is stronger than in the Dilley case. The property taken may have been stolen any time the night of the larceny after Schmidt closed his filling station about nine-thirty P.M. The appellant's alibi witnesses testified he was in Richmond between about ten-thirty or eleven o'clock P.M. and one-thirty or two o'clock A.M. The jury did not have to believe these witnesses, but granting their story was true we cannot say as a matter of law he might not have been in Richmond at the time fixed by them and still have committed the larceny at the filling station in Carrollton after it was closed. The evidence is clear that he was found with the stolen property in his possession before the night was over.
Neither is there anything in this case to indicate the appellant was merely riding with or helping the real thief. The inference is that the automobile in which he and Scott were riding belonged to appellant; for the alibi witnesses testified Scott borrowed appellant's automobile that night. Furthermore, the appellant took the lead in the conversation when the officers apprehended him and Scott, and said they had come from his home at Moberly where they had got the property they were transporting. This statement was false and therefore incriminating...
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