State v. Goldfeder

• Decision Date: 08 June 1922
• Docket Number: No. 23327.,23327.
• Parties: STATE v. GOLDFEDER.
• Court: Missouri Supreme Court

242 S.W. 403

STATE v. GOLDFEDER.

No. 23327.

Supreme Court of Missouri, Division No. 2.

June 8, 1922.

Appeal from St. Louis Circuit Court; son A. Taylor, Judge:

Abe Goldfeder was convicted of larceny, and he appeals. Reversed and remanded.

Thomas B. Harvey, of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

DAVID E. BLAIR, J.

Defendant was. convicted of the crime of grand larceny, and was sentenced in accordance with the verdict of the jury to imprisonment in the state penitentiary for a term of five years. After unsuccessful motion for a new trial he has. appealed.

There is no substantial disagreement concerning the facts, and we adopt the commendably clear and concise statement thereof in appellant's brief.

"The appellant, Abe Goldfeder,, and one William Henfling were jointly indicted for burglarizing a liquor store and stealing therefrom several barrels of whisky on March 6, 1921. On March 20th five barrels of the whisky and several empty jugs, stolen by means of the same burglary, were discovered in the garage of one Katz, and thereafter two policemen were stationed in the garage to watch the stolen goods. On March 25th they heard the approach of an automobile, and soon thereafter the said Rending opened a door to the garage and entered, followed by the defendant, Goldfeder. Henfling approached the barrels, and remarked that somebody had been in there. Whether this remark was merely a soliloquy to himself, or was made to his companion, who was some distance in the rear, or whether it was heard by him, does not appear. Just then the officers stepped out from their place of concealment, and placed both parties under arrest, and asked them what they were doing there. Goldfeder exercised his constitutional right to remain silent, and said nothing; but Henfling made a reply either that `he' halt rented the garage, or that `we' had rented it. The officers were uncertain which expression was used.

"The two men had in their possession a faucet, and a key to operate the same, and a brace and bit suitable for boring a hole to fit the faucet.

"This was the state's case. The defendant Goldfeder's explanation of his presence at the garage with Henfling was' that he was there to buy some of the whisky from Rending, and; be denied any other connection with the stolen goods; and he corroborated this statement by the testimony of other witnesses. "Defendant's demurrer to the state's case was overruled, and exceptions were saved."

At the close of all the evidence the defendant renewed his demurrer, same was overruled, and he duly excepted.

The only evidence tending in any wise to connect the appellant with the burglary and larceny charged in the indictment, or either of said crimes, is the evidence touching his presence in the Katz garage nearly three weeks after the alleged crime was committed, and the circumstances attending such presence, and the statement made to the officers by Henfling in such garage after appellant and Henfling had been taken into custody.

I. The state relies for affirmance of the judgment below solely upon the presumption arising from the possession of recently stolen property. The only evidence tending to show such possession in the appellant is the statement of Henfling: "We rented the garage." Appellant contends that the testimony as to such statement made by Henfling was not admissible as against him, and that the trial court erred in admitting the same. The learned Attorney General concedes the force of this contention, and in oral argument frankly admitted that, if the error is properly before us for review, the judgment must be reversed. However, he seeks to avoid the consequence of such error by taking the position that no proper objection was made to such testimony, nor any timely exception saved.

The following occurred during the testimony of Officer Puls:

"A. And we heard some one at the door, and we went into the side of the garage and behind the partition where the truck is; there was a wooden partition in there; and the door opened and William Henfling came in first.

"Q. Now, were you acquainted with Henfling? A. Yes, sir; I know him.

"Q. How long had you known him? A. Three or four or five years; I can't say exactly.

"Q. Go ahead. A. And on his entering the door, we heard him say: `Somebody has been here.'

"Mr. Bass: I object to that, and ask that any statement that Henfling made be stricken out as immaterial, incompetent, and irrelevant, and as it has no bearing on any issue in the case, and as it is not binding upon this defendant.

"The Court: Objection overruled. (To which ruling of the court the defendant then and there at the time duly objected and excepted, and still continues to object and except.) * * *

"Q. And did you say anything to either of these men? A. To just throw up their hands, and I backed them up against the wall.

"Q. Did you have any conversation later with them? A. Yes, sir; we did.

"Q. What was that conversation? A. We asked them abort the garage, and about the whisky, and he says he rented the garage.

"Q. Who said that? A. Henfling.

"Mr. Bass: I make the same objection.

"The Court: The objection will be sustained, unless it was made in Goldfeder's presence.

"Mr. Williams (resuming examination): Q. Was Goldfeder present at that time? A. He was under arrest at the same place.

"Mr. Bass: I make the same objection, as there has been no showing here of any conspiracy, and any statement made by Handing wouldn't be binding on this defendant.

"The Court: Objection overruled. (To which ruling of the court the defendant then and there at the time duly objected and excepted, and still continues to object and except.)

"Mr. Williams (resuming examination): Q. Did Goldfeder make any statement? A. He did not.

"Q. (by the court). Now, as I understand it, you say you asked them both? A. They were both together, and we asked them.

"Q. (by the court). What did you say? A. We asked them what they were doing here.

"Q. (by the court). What did they say? Did you ask them both that? A. They were right there, Mr. Henfling and Mr. Goldfeder.

"Q. (by the court). What response was made to that? A. That we rented the garage.

"Q. (by the court). In response to your question to both of them, Henfling says: `We rented the garage'? A. Yes, sir.

"Q. (by Mr. Bass). What is that? A. Henfling said: `We rented the garage.

"Q. (by Mr. Bass). Are those the words he used? A. Yes, sir.

"Q. (by Mr. Bass). That `we' rented it? A. Yes, sir.

"Mr. Williams (resuming examination): Q. And did Goldfeder then make any explanation? A. No, sir; he didn't make any explanation."

It clearly appears from the foregoing that counsel for appellant objected twice to the testimony concerning statements made by Henfling on the ground that such statements were not binding on the defendant, and saved proper exceptions to adverse rulings. Such objections and exceptions were not waived by failure to...