State v. Goffstein

• Decision Date: 03 May 1938
• Docket Number: 35852
• Citation: 116 S.W.2d 65,342 Mo. 499
• Parties: The State v. Sam Goffstein, Appellant
• Court: Missouri Supreme Court

116 S.W.2d 65

342 Mo. 499

The State v. Sam Goffstein, Appellant

No. 35852

Supreme Court of Missouri

May 3, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge.

Affirmed.

Cullen Storckman & Coil for appellant.

(1) The conviction should be reversed because the proof was insufficient to show the defendant guilty of receiving stolen property. If there was any evidence tending to show guilt at all, it tended to show that the defendant was guilty of larceny, and under such evidence could not be convicted of receiving stolen property. State v. Willner, 199 S.W. 126; State v. Honig, 9 Mo.App. 300; People v. Brien, 6 N.Y.S. 198; State v. Harrig, 78 Mo 249; State v. Cohen, 254 Mo. 451; State v. Kuhlman, 152 Mo. 100; State v. Shapiro, 216 Mo. 371. (2) Remarks of counsel, qualification of jury, the reading of newspapers and the proceedings relating thereto, and the nature of the news articles in the papers, which got into the possession of the jury, afford ample ground for new trial. Meyer v. Katwallender, 49 F. 32; 17 Am. & Eng. Enc. of Law (2 Ed.), p. 1215.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) The entire panel of jurors who heard the case were not disqualified and the circuit attorney did not commit error in mentioning the name of Biederman. State v. Short, 87 S.W.2d 1031, 337 Mo. 1061; State v. Hohensee, 62 S.W.2d 439, 333 Mo. 161; State v. Vigus, 66 S.W.2d 854; State v. Wright, 95 S.W.2d 1157; State v. Perno, 23 S.W.2d 88; State v. Lewis, 20 S.W.2d 529; State v. Watson, 104 S.W.2d 275. (2) The court did not err in allowing the circuit attorney to ask whether or not the name "Biederman" recalled to their memory anything with relation to the case. State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066. (3) The testimony in this case did support the charge that defendant was guilty of receiving stolen property, and the court did not err in refusing to direct a verdict for the defendant. State v. Glazebrook, 242 S.W. 928.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Appellant was convicted of the crime of receiving stolen property, to-wit, eighteen batteries of the value of more than $ 30, knowing same to have been stolen, was sentenced to three years' imprisonment in the penitentiary and has appealed. By his brief here he presents two questions: First, the sufficiency of the evidence and, second, certain matters pertaining to the qualification of the jury.

Fifty Willard batteries, of the approximate wholesale value of $ 5 each, were stolen on or near December 1, 1934, from the Central Battery Company, Inc., in St. Louis. The place was burglarized and the larceny was committed personally by John Williams, a colored man who had served time in the penitentiary. Eighteen of the batteries were later recovered from Rothman Brothers, of St. Louis, dealers in such merchandise. These eighteen had been sold to Rothman Brothers by defendant and are the eighteen here involved. There is no question about the identification or that said property had been stolen.

The State's principal witness was said John Williams, who testified in substance and effect that:

He and defendant had known each other several years. He had worked for defendant occasionally at odd jobs, such as washing his car, etc., and had sometimes driven defendant's car. He owed defendant some $ 35 for having furnished him bail bond on some criminal charge. He said that he and defendant talked about "getting some batteries," "I was supposed to do that, to make payment on that bond;" that thereafter he and defendant, in defendant's car, drove by said Central Battery Company's place of business and defendant said there was the place to get the batteries. He went there that night but did not then commit the larceny. Evidently conditions did not seem propitious. Next night he went back. He had seen several loaded trucks drive into the building in the afternoon or evening. After dark he effected entrance through the skylight, opened a rear door, drove out a truck loaded with fifty batteries, including the eighteen in question, and drove to a garage operated by a friend of his named Giles. He there "cached" the batteries and drove the truck to a street some distance away, where he abandoned it, and then went home. Next day he notified defendant he had the batteries and during that day met defendant and they went together in defendant's car to Giles' garage. However, before so meeting defendant that day, Williams had taken from Giles' place ten of the batteries and had sold them to one Albright for $ 20. He told defendant about this sale, but did not give defendant any of that money, and from his testimony it appears that defendant made no protest.

When Williams and defendant arrived at Giles' garage the batteries were not there. Williams testified that Giles said they had been "misplaced" and he did not know where they were. Williams suspected they might be found at a place in East St. Louis where a girl friend of Giles' worked and he and defendant, in defendant's car, went to said place, where, after some inquiry, they found the eighteen batteries here involved, loaded them into defendant's car and took them to Rothman Brothers' store in St. Louis, Missouri. Defendant had previously that day arranged with Rothman Brothers to sell them some batteries. Willams and defendant arrived at Rothmans about nine P. M. Williams said that defendant went in to make the sale, leaving him in the car. The batteries were carried into Rothman's through a back door. On returning to the car after completing the sale defendant gave Williams $ 19, saying that he had only received $ 35.

Isidor Rothman, one of Rothman Brothers, testified that the batteries were brought to their place about nine o'clock P. M., "about closing time;" that "the batteries were bought earlier in the day;" that defendant had been at the store once or twice that afternoon and talked with Joe (Isidor's brother) about selling some batteries which, as he understood, defendant said he had picked up as salvage or "distress merchandise," or something of the sort, and had heard defendant and Joe agree on a price of $ 55; that there were supposed to be twenty batteries; that the batteries were supposed to have been delivered within a few hours, and that when they were brought defendant told him the reason he was so late was that he had had some car trouble; that he started to write defendant a check for the whole purchase price -- $ 50, since there were only eighteen instead of the expected twenty batteries -- but defendant asked for cash, saying he needed some money that evening, so he gave defendant $ 35 cash, all he could then spare, and told him to come back for the balance in the morning; that defendant came back next forenoon and received the remaining $ 15. (Note: -- There is no evidence that defendant had had any car trouble.)

Joe Rothman, one of Rothman Brothers, testified that he conducted the negotiations on behalf of his firm with defendant; that defendant said he had bought batteries at an auction and wanted to dispose of them and they finally agreed upon a price of $ 55, witness understanding that there were twenty or twenty-one batteries. Joe was not present when the batteries were delivered.

A police officer, Arthur Wander, testified that he had been assigned to investigate concerning the larceny and after the recovery from Rothman by the police of the eighteen batteries he had a talk with defendant at the police station, where defendant had been called for questioning. We quote part of his testimony:

"I said, 'I have got a complaint here that you sold eighteen batteries and some separators and some cables at Rothman Brothers', at Semple and Easton.' He says, 'I think you have got me wrong.' I says, 'Now there were eighteen batteries I recovered out there, and I said 'The Rothmans stated that they bought them from a man by the name of Sam, and gave me a description which compared with your description.' I said, 'I later got a photograph and showed them your photograph' and they said, 'This is the man we bought the batteries from.' He says, 'No, no, I didn't; you are absolutely wrong.' So I then confronted Isidor Rothman before Sam, and asked Isidor Rothman if he knew this man. He says, 'Yes, that is the man that I have known by the name of Sam, that sold me those eighteen batteries, separators, cables and so forth.' He said, 'I paid him $ 35.00 the night of the delivery, and $ 15.00 the next morning.' I said, 'Sam, what have you got to say about it?' He says, 'No, no, no.' So I said, 'Now, this man wouldn't come in and make these statements -- he positively identifies you.' He says, 'Can I talk to you alone?' I said, 'Absolutely;' so I had Isidor Rothman and a couple of the boys that was in there -- my men -- detectives step outside. Detective Stein and I were inside of the office with Sam. I said, 'Now, Sam, you had better clear your skirts,' I says, 'This is a serious case.' I says, 'I know these batteries was positively stolen from the Central Battery Company. We have got them positively identified.' I says, 'You had better tell me where you got these batteries from.' So he says, 'You promise that you will take care of me?' I said, 'No, I can't promise you nothing,' I says, 'You have got to clear yourself, and tell me where you got these batteries.' He said, 'Well, then, you won't take care of me?' I said, 'I am not promising you anything,' I said, 'You had better state where you got those batteries;' and then he mentioned the name of Johnny Williams; he said, 'Don't you know Johnny Williams, the colored kid that has been driving me?' and I says, 'No, Sam, I do not know Johnny Williams,' I...