State v. Flowers

• Decision Date: 22 December 1925
• Docket Number: No. 26620.,26620.
• Citation: 278 S.W. 1040
• Parties: STATE v. FLOWERS et al.
• Court: Missouri Supreme Court

278 S.W. 1040

STATE v. FLOWERS et al.

No. 26620.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Lee Flowers and another were convicted of larceny from a dwelling, and they appeal. Affirmed.

McKay & Peal, of Caruthersville, for appellants.

Robert W. Otto, Atty. Gen. (C. E. Curtis, of Jefferson City, of counsel), for the State.

WALKER, P. J.

Appellants were charged by information in the circuit court of Pemiscot county with larceny from a dwelling. Upon a joint trial to a jury they were found guilty, and each of their punishments assessed at two years' imprisonment in the penitentiary. From these judgments they appeal.

In March, 1923, appellants went to a pawnshop in Caruthersville, conducted by one Friedman, and sold a suit of clothes to a clerk named Frank Pride. Later they returned to the pawnshop in the custody of an officer, and redeemed or purchased the suit of clothes, and it was taken away by the officer and delivered to the owner, J. J. Malone. The appellant Flowers told the officer that the suit belonged to Malone, and that they had stolen it from Smith Langston's house, and sold it to Friedman's clerk at the pawnshop. A part of the language used by the appellant Flowers in the presence of Jones in admitting their guilt to the officer was as follows:

"We got the suit of clothes and carried them down there, and I sold them."

The appellants did not testify, and there was no testimony offered in their behalf.

I. The contention is made that the court erred in overruling appellants' plea in bar or abatement. There is no entry in the record proper of the filing of such a plea or of a motion to quash the information, and the bill of exceptions contains no pleading of this character. That testimony was offered to sustain such a pleading does hot supply the necessity of the court's entry of its filing, and, not having been preserved in the bill of exceptions, its subject-matter cannot be determined. If, as indicated in the testimony, the purport of this plea or motion was to the effect that the amended information, upon which the case was tried, was invalid in that leave of court for its filing had not been obtained as required by section 3853, R. S. 1919, this objection is dissipated by the testimony of the clerk of the circuit court, who, upon being further examined as to the record entries in the case, said:

"After a more thorough examination I have found the following order of the court: `The prosecuting attorney is given leave to file an amended information in this case, and the cause is continued to the November term.'"

The leave required by the statute having been obtained, the contention, from any coign of vantage, is without merit, and is overruled.

II. The gravamen of the offense charged is larceny, and an averment of the ownership of the property stolen constituted a part of such charge, while the proof of the place of its commission fixed the grade of the crime irrespective of the value of the goods stolen. The information charging, as it does, a statutory offense, as shown by the foregoing, contains all of the essentials required by the statutes. Sections 3312, 3315, and 3316, R. S. 1919.

It is contended that the proof of the corpus delicti was based upon the uncorroborated confession of the appellant and his coindictee, and was consequently insufficient to sustain a conviction. This contention does not correctly state the facts. In addition to the confession of the theft by the appellants, their possession of the suit soon thereafter and its sale by them to the keeper of the pawnshop was shown. Further than this, when arrested and charged with the crime, they went, evidently at their own instance, accompanied by an officer, redeemed the suit, and it was delivered to the owner. The larceny as well as the place of its commission having been admitted, and the ownership of the property being undisputed, proof of the other relevant facts and circumstances fully corroborated the admission of guilt, and renders of no avail the objection to the failure of proof to establish the corpus delicti. While it is held in some jurisdictions (25 Cyc. p. 120b, note 82), that the corpus delicti in larceny cannot be proved by the uncorroborated confession of the accused, that rule has never met with approval here. The rule in this state uniformly adhered to is that proof of the corpus delicti independent of a confession is not required. In State v. Skibiski, 245 Mo. loc. cit. 463, 150 S. W. 1038, in a well-considered opinion by T. T. Blair, J., citing many cases, it is held that, if there is evidence of corroborating circumstances which tend to prove the corpus delicti which correspond with circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti has been sufficiently proved. A further interesting discussion of this question may be found in State v. Vinton, 220 Mo. loc. cit. 100, 119 S. W. 370, in which, after stating the circumstances to establish the guilt of the accused, which were not nearly as convincing as those at bar, it is held that the proof of the corpus delicti may be established by purely circumstantial evidence. The appellants' contention, therefore, considered from every point of view permitted by the rules of construction, is without merit.

III. It is also contended that—

"Although property be stolen from a dwelling house, yet if, when stolen, it was under the care and protection of the person from whom it was stolen, and not properly under the protection of the dwelling house, it does not constitute larceny from a dwelling house under the statute."

In support of this contention appellants cite State v. Patterson, 98 Mo. 283, 11 S. W. 728. The language employed in that case is unfortunate in announcing a general rule and leaving the question as to what constitutes the "care and protection" of the owner or that of the dwelling house undetermined, and hence a subject of controversy. This ruling under a like state of facts has never been referred to, much less followed in any subsequent case. It loses sight of the fact that, while personal property may not at all times be in the physical possession of the owner, it is, unless in the possession or under the control of another with the owner's consent, at all times under the latter's care and protection within the meaning of the law. In whatever place, therefore, it may be located at the time it is stolen, if such place can properly be designated a dwelling house, the offense of a larceny therein is committed, as defined in the statutes under which the information was drawn. Not content with the ruling referred to in the Patterson Case, as disclosed by the statement of the facts in the opinion, we have examined the bill of exceptions in that case. It discloses that the defendant and one Shanklin, the owner of the money stolen, lived or were lodging at a hotel in Sedalia, and roomed together, sleeping in the same bed. Shanklin and the defendant spent a portion of the night preceding the theft in drinking. Shanklin had, when they started out, about $40, and paid for all of the drinks; the defendant having no money. When they returned to their room Shanklin had about $35 remaining, which consisted of a $20 and a $10 gold piece, and some $4 or $5 in silver, which he says he felt in his pocket just before retiring. When he awoke in the morning the defendant was up and dressed. Upon arising, Shanklin examined his trousers, and, missing his money, exclaimed: "I'm robbed." While dressing, he saw in the indistinct light of the early morning, what he thought was a silver dollar lying on the floor, and said: "They didn't get it all though, here's $1." As he picked it up the defendant said: "Is it a...