State v. Fink
| Decision Date | 31 January 1905 |
| Citation | 84 S.W. 921,186 Mo. 50 |
| Parties | THE STATE v. FINK, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.
Reversed and remanded.
F. E Fickeissen for appellant.
(1) If defendant assisted in any way in the larceny, and in the perpetration of that crime had the cigars taken to his place and sold them, he could not be convicted of receiving, but only of larceny. State v. Honig, 78 Mo. 249; Owen v. State, 52 Ind. 379; Matter of Franklin, 77 Mich. 615; People v. Brien, 53 Hun 496. If the State had evidence of such participation in the larceny, and indicted and tried defendant for the larceny and he was acquitted, then the State could, by rejecting the evidence of participation in the larceny, and showing only the possession of the stolen goods, knowledge that they were stolen, and a felonious intent, carve out again the offense of receiving; but this the State has no right to do. If the State did carve two offenses out of the same transactions and place the defendant in jeopardy twice, he should have been allowed to make the showing by offering evidence to sustain the plea in bar. (2) The first instruction given by the court is erroneous, because it fails to require the jury to find that the defendant received the stolen property "from the thief." Foster v. State, 106 Ind. 272; 24 Am. and Eng. Ency. of Law (2 Ed.), 50. (3) There is not one word of evidence to show that the cigars were stolen from the railroad company. All of the proof was that the cigars were delivered to the drayage company upon the consignee's order, and that they later disappeared. (4) The verdict is a special verdict and fails to conform to the issues. The jury should, by their verdict, have stated the value of the property they found defendant had received. State v. Pollock 79 S.W. 980.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The issues raised upon the former indictment are not the same as the issues upon the indictment in the case at bar, nor is the proof the same. The fact that defendant was acquitted of the one does not necessarily preclude his conviction of the other so as to place him in jeopardy of his liberty on the same matter and subject a second time. (2) A general verdict finding the defendant guilty as charged of receiving stolen property into his possession, knowing the same to have been stolen, with intent to deprive the owner of the use thereof, is sufficient.
The defendant in this cause was convicted in the circuit court of the city of St. Louis for receiving stolen goods, knowing the same to have been stolen.
The indictment upon which this judgment is based is as follows:
"The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn, and charged, upon their oath present that Frederick Fink, on or about the twenty-eighth day of May, one thousand nine hundred and three, at the city of St. Louis aforesaid, forty-five thousand cigars, all of the value of five hundred and fifty dollars, of the goods and personal property of the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, a corporation, then lately before feloniously stolen, taken and carried away from the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, a corporation as aforesaid, with the intent on the part of the thief to permanently deprive the owner of the use thereof, feloniously and fraudulently did from the said thief buy, receive and have; the said Frederick Fink then and there well knowing the said goods and personal property to have been stolen, taken and carried away from the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, a corporation as aforesaid, the owner thereof, with the intent on the part of the thief, as aforesaid, to permanently deprive the owner, the said Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, a corporation as aforesaid, of the use thereof; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State."
To this indictment the following plea in bar was filed:
To this plea the State interposed a demurrer; which demurrer was by the court sustained, and the trial upon the merits proceeded.
The testimony on the part of the State tended to show that the defendant received the property from one William Wheeler, knowing that he was not the legal owner of the property. Witnesses were introduced by the State, and testified substantially as follows:
David Pile testified: In May, 1903, I was checking for the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, in East St. Louis, Illinois; that company is a common carrier and has a freight depot there; was checking freight out of cars on May 28, 1903; checked two cases of cigars for L. Haase Cigar Company, out of St. Louis & Southwestern Railroad car No. 11974, and the cases were put on the platform of the freight depot near station 77. Q. Did you see the cases placed at station 77? A. No, sir; it was reported to me.
W. O. Life testified: I was platform delivery clerk; I know William Wheeler, driver for a transfer company; in May, 1903, he was driving for the Drayage Transfer Company; saw the two cases of cigars consigned to L. Haase Cigar Company; Wheeler backed his wagon in for a load near where the cases of cigars were, and after that I did not see the cases on the platform any more; after that I saw the cases in the office of the chief of detectives in St. Louis. I gave the cigars to Wheeler, that is, I told the man to put them on Wheeler's wagon; I did not see the cigars go on the wagon; we deliver the freight to the transfer company in East St. Louis and it passes out of our possession; The Drayage Transfer Company is a common carrier; we had orders from Mr. Haase to deliver his freight to the transfer company.
John C. Payton testified: I saw the two cases of cigars consigned to the Haase Cigar Company, at the office of chief of detectives Desmond in St. Louis, Missouri; they were ordinary cigar cases, two and one-half or three feet square; one contained 249 boxes of 100 cigars each and the other 193 boxes of 100 cigars each; the Drayage Transfer Company is a corporation and receives freight from us to be carried to the consignees in St. Louis.
Bernard F. Kossler testified: On May 27, 1903, I trucked two cases of cigars for Louis Haase Cigar Company into wagon 120 of the Drayage Transfer Company; don't know Wheeler; later saw the two cases in Chief Desmond's office. Only know the number because the driver said that was the number of the wagon; the cases I saw in the chief's office were the same size as those I trucked, but I can't say they were the same cases.
Arthur J. Davenport testified: Druggist at 515 Olive street; on May 27, 1903, Fink offered to sell me 45,000 Hoffman House Magnum cigars at $ 10.50 a thousand; I agreed to take 25,000; they were delivered next day; the case was not opened; the detectives took it; later, saw the case and cigars at the Four Courts.
Louis Haase recalled: I had an arrangement with the Drayage Transfer Company to bring over all goods consigned to us and deliver them at our store.
J. L. Stahl testified: Am warehouseman for Drayage Transfer Company. On May 27th, man by the name of Wheeler drove one of our "jumbo" wagons, No. 120; he went to the "Big Four Road" empty and came back with a load.
At the close of the evidence, the court instructed the jury, and the cause was submitted and they returned a verdict of guilty and assessed defendant's punishment at imprisonment in the penitentiary for two years.
From this judgment of conviction defendant prosecuted this appeal and the cause is now before u...
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