State v. Gale

• Decision Date: 13 April 1959
• Docket Number: No. 47139,No. 2,47139,2
• Citation: 322 S.W.2d 852
• Parties: STATE of Missouri, Respondent, v. Eldon Edward GALE, Appellant
• Court: Missouri Supreme Court

Page 852

322 S.W.2d 852

STATE of Missouri, Respondent, v. Eldon Edward GALE, Appellant.

No. 47139.

Supreme Court of Missouri, Division No. 2.

April 13, 1959.

Wm. Duke Hiett, Houston, for appellant.

John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

The appellant, Eldon Edward Gale, has been found guilty of an offense under the recently enacted statute dealing with the subject of 'stealing' (V.A.M.S. Secs. 560.156, 560.161, Laws Mo.1955, p. 507, Laws Mo.1957, p. 374) and sentenced to two years' imprisonment.

The information charged that on January 22, 1958, Gale 'did feloniously, wilfully, and unlawfully conceal and retain in his possession certain personal property, towit: one Silvertown 825-20 truck tire, and one U. S. Royal 825-20 Truck tire, of the total value of One Hundred Dollars ($100.00), the personal property of Dwane Muller, d/b/a Muller Construction Company, and that the said Eldon Edward Gale the said personal property of the value aforesaid intentionally, unlawfully, and feloniously then and there, without the consent of the said Dwane Muller, d/b/a Muller Construction Company, did steal; * * *.' At the instigation of the state the court gave three instructions, one on the presumption of innocence and reasonable doubt, another on the credibility of witnesses and number one, the principal instruction. That instruction, in the language of the statute (V.A.M.S. Sec. 560.156) defined the word 'steal,' it defined the words 'wilfully' and 'feloniously' as they have heretofore been defined and the instruction submitted the state's case and the defendant's guilt in this language:

'The Court instructs the jury, that if you believe and find from the evidence, and beyond a reasonable doubt, that the defendant, in Texas County, Missouri, on or about the 22nd day of January, 1958, did wilfully and feloniously steal the property mentioned in evidence, as charged in the information, to-wit: * * * without the consent of the owner, and if you further find from the evidence that at said time and place the said property, to-wit: the said two truck tires, were the personal property of Dwane Muller * * * and of the value of fifty dollars or more, you will find the defendant guilty of stealing property of a value of at least fifty dollars, * * *.'

The substance of the state's evidence, by these witnesses, was this: Radford Kelly operated a garage in Licking; he said that in January, 1958, he had in his possession 'some tires' and that they belonged to 'Muller Construction Company' of Spring-field. When asked the circumstances in which he 'had those tires' Kelly said 'Well, he left them there in my care. They was in back of the truck and he was afraid someone would get them and afraid someone--to leave them.' Kelly testified that the tires in his 'possession' were 'located' in the paint room of his garage. Kelly did not miss the tires but one of his employees 'reported to me that they was gone one morning.' He then went to the garage and 'They was prints on the floor that looked like tread marks where they'd been rolled, and they was a print on the--in the snow on the outside a(t) the back door,' also footprints in the snow and the tires were not in the garage. Kelly said that the tires, later shown to him by the sheriff, were the same tires that had been in his garage, or 'Just like them if they're not; looked like them. * * * They look just like them, anyhow. * * * Well, either them or two just like them.'

The sheriff, his deputy and another man, who di not testify, drove out in the country to the appellant's home and the appellant was in his yard working on a car. The sheriff asked the appellant 'if he had took some truck tires,' the appellant said, "No,' he didn't know anything about 'em.' The sheriff inquired whether the appellant had any objection to their looking around for the tires 'and so he set there awhile and he stated that if we'd go back to town he'd bring the tires in in about 30 minutes.' Then the sheriff testified: 'We told him that we wanted to get the tires while we were there. So we got out of the car and went into his home and he go a cream can, I believe it was, and got up on it and started ripping the ceiling off of the kitchen, I believe. It was nailed up, looked like it just been re-sealed. He climbed up in the attic and started handing those two tires down.' To the sheriff's testimony the deputy added that when the sheriff asked about the tires Gale said, 'He didn't wanna get anybody involved, he said. * * * I didn't put the tires out there.' The sheriff and his deputy then took the tires and the appellant to Kelly's garage in Licking. There was no other evidence on behalf of the state.

As the court pointed out in State v. Zammar, Mo., 305 S.W.2d 441, 444, it is neither desirable nor appropriate to embark upon a full-scale inquiry as to the scope, meaning and effect of these statutes, V.A.M.S. Secs. 560.156, 560.161, until the exigencies of a particular case compel it, therefore this opinion is limited to the specific questions raised by the appellant's motion for a new trial. This much is established by the Zammar case, the primary purpose of these statutes was to eliminate the technical distinctions between the offenses of larceny, embezzlement and obtaining money under false pretenses. 305 S.W.2d loc. cit. 445; 1954 Wis.L.R. 253, 267; Anglin v. Mayo, Fla., 88 So.2d 918. Or, as the New York court observed of a comparable statute, it 'was aimed at eliminating the subtle and confusing distinctions that had previously differentiated the various types of theft.' People v. Karp, 298 N.Y. 213, 81 N.E.2d 817. The 'Final Report of the Senate Criminal Law Revision Committee,' Vol. 1, p. 47, states that this act repealed fifty-nine specific statutes relating to larceny, embezzlement and false pretenses and instead of seventy-seven definitions relating to these subjects has reduced the definitions 'to a single act' of 'stealing.' In this connection, the report states that 'stealing,' as employed in the act, is a 'generic term * * * having a general but, until now, no specific meaning in the law.' The report points out, p. 46, that the crimes of larceny, embezzlement and false pretenses 'all have one common core, that is, the unlawful appropriation or use of or interference by one person with the property of another so as to deny him his lawful property rights therein.' Thus far the general purposes of the statutes are plain enough, how much further they go need not now be decided. The New York court was of the view that 'it was not, however, designed to, and did not, broaden the scope of the crime of larceny or designate as criminal that which was previously innocent.' People v. Karp, supra.

While the proof in this case was skimpy in many respects it is a fair and reasonable inference from the testimony of the garageman that Dwane Muller 'was the owner of the tires' as alleged in the information and hypothesized in the instruction. It is also a fair inference from the quoted testimony that Muller personally left the tires in the care and custody of Kelly and that someone took the tires from his garage. Thus the state's meager evidence was sufficient to support the inference and there is no merit in the appellant's claim that he is entitled to a new trial for lack of evidence of ownership of the tires, there was no material variance in the proof in this respect and as will appear from the defendant's evidence, he obviously conceded that the tires belonged to Muller. 32 Am.Jur., Sec. 138, p. 1050; State v. West, Mo., 246 S.W. 541.

With respect to his claim that there is 'no evidence to prove that the Defendant did steal the tires,' whatever the scope of the statute (V.A.M.S. Sec. 560.156), there are these established or tacitly conceded circumstances: The tires were originally in Kelly's garage, in his custody, and it is a reasonable inference that they were taken from the garage and from Kelly's custody without his permission. The appellant had the tires in his possession, they were recently stolen and he admittedly concealed them although he appears to have voluntarily turned them over to the sheriff. Just when and whether he formed the intention to convert the tires to his own uses or purposes, manifested by his concealment of them, is not known but the appropriate inferences to be drawn from his conduct in the detailed circumstances were for the jury and if found were sufficient to establish the offense of grand larceny at common law or of 'stealing' under the statute. 32 Am.Jur., Sec. 40, p. 934; State v. Simpson, Mo., 237 S.W. 748; State v. Nichols, Mo., 130 S.W.2d 485; State v. Dobson, Mo., 303 S.W.2d 650.

The difficult and meritorious assignment in the appellant's motion for a new trial is that the court erred 'in failing to instruct the jury on his defense that at the time the alleged tires came into the possession of the Defendant, he discontinued any use of said tires and planned to contact the alleged owner to learn what disposition was to be made of said tires; and that no further transfer of said tires was made as required by Paragraph 3, Section 560.156, Revised Statutes of Missouri, 1949, as amended Laws of Missouri, 1955, Page 507.' Despite his possession and concealment of the tires, Gale entered a plea of not guilty; specifically his defense was that he did not intend to steal the tires, that is convert them to his own use without the consent of the owner, Muller. In this connection the statute provides: 'If the property stolen within the meaning of subsection 2 is a chattel and the person charged...