State v. Griffin

• Decision Date: 19 March 1921
• Docket Number: No. 22566.,22566.
• Citation: 228 S.W. 800
• Parties: STATE v. GRIFFIN.
• Court: Missouri Supreme Court

228 S.W. 800

STATE v. GRIFFIN.

No. 22566.

Supreme Court of Missouri, Division No. 2.

March 7, 1921.

Rehearing Denied March 19, 1921.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

Carlisle Griffin was convicted of having removed and concealed an automobile subject to a chattel mortgage, and he appeals. Reversed and remanded.

On the 28th day of September, 1917, Mr. Wm. S. Conner, the assistant circuit attorney for the city of St. Louis aforesaid, filed herein a verified information, charging defendant with having removed and concealed a secondhand Ford touring car, described in a chattel mortgage given by said defendant to the Weber Motor Car Company, a corporation, on the 20th day of May, 1916. Defendant was convicted and his punishment fixed at three months in the city jail. He filed a motion to quash said information, which contained, among other things, the following:

"Because two or more separate and distinct crimes are attempted to be charged in said information in the same count and not separately stated."

The motion was overruled and an exception duly saved to the overruling of same.

The evidence on the part of the state substantially shows that on the 20th of May, 1916, the Weber Motor Car Company, a corporation, located at 2217 Locust street, St. Louis, Mo., sold to defendant, for the sum of $300, one secondhand Ford touring car. A contract in writing was entered into between defendant and said company in regard to terms of payment, etc., which was offered in evidence by the state and marked as "Exhibit A." It appears from the evidence that shortly after the execution of said Exhibit A, defendant likewise executed and delivered to said company a chattel mortgage on the Ford touring car aforesaid to secure $175, being the balance due after deducting the payment of $125 paid in cash at the time of the execution of the instrument aforesaid. By subsequent payments, and by work which defendant did for the benefit of said company, the amount of said indebtedness, at the time of trial, was reduced to about $118. The $175, balance due on said car, was to be paid by monthly installments of $25 each, as shown in said Exhibit A. The whole of said indebtedness was due prior to May, 1917.

Edward Weber, a member of the above corporation, testified in substance that his firm handled new Studebaker cars, along with secondhand cars that might be taken in trade; that on the 20th of May, 1916, defendant took possession of the Ford car aforesaid; that in May, 1917, witness personally made demand of payment of the notes aforesaid, which were then due, at defendant's place of business on Delmar avenue. Witness testified, in respect to said matter, as follows:

"Q. What conversation did you have with Griffin? A. Well, I said to him, `If you don't want to pay or can't pay the note, let us have the car back.'

"Q. What did he say? A. He said he wouldn't do it. I asked where the car was, and he couldn't tell us.

"Mr. O'Malley: We object to that as a conclusion, your honor.

"The Witness: He wouldn't tell us.

"By Mr. Reeder: Q. Did you see the car at that time? A. No, sir."

Witness further said defendant told him the car was in a certain place; that he and his secretary went to the place designated, and the car was not there; that he went to defendant's sign shop and also to his residence and could not find it; that said company then brought a replevin suit for the possession of said car, but did not get it.

On cross-examination, witness said that he went to defendant's residence with Mr. Fassig, at 919 Pendleton avenue; that they looked to see if defendant had a car in the garage or if he had a garage, and that they could not find any Ford car around there; that there was no car like this one on Pendleton avenue. Witness testified that Exhibit A was signed, and that when the delivery of the car was made, some two days later, the mortgage and notes were executed; that the car was still at the company's place of business at that time; that defendant had already ridden in the car and had examined same. This witness further testified:

"By the Court: Q. I don't think it is quite clear what was said by Mr. Griffin at the time you went out there. I believe you have related what you said; now, what did he say? A. He said the car was in the back of his place of business, and we went back there and the car was not there, but I thought maybe we might have misunderstood where he meant, and I went over to the back of his residence, because I understood he did conduct another business from there. That was my impression, and I went there and looked in the back, at the garage or back yard, and there wasn't any car there, and there wasn't even a garage at this place. * * *

"By the Court: Q. What did he say about paying the money, anything? A. He said he wasn't going to pay any more, I believe, or he couldn't pay; I don't know which. I says, `If you can't pay, then let us have the car,' and " he said he wouldn't do that" Russell Facsig, in behalf of the state, testified in substance that there was about $118 of the indebtedness due said company still unpaid, and that, in the spring of 1917 he called upon defendant to pay the same and the latter told him he would pay later. Witness says he then told defendant his company could not let this matter drag any longer. They must either have the money or the automobile, and defendant said he could not pay then. Witness then asked him where the automobile was, and he said, "In back of my house." Witness then had defendant's address as 919 Pendleton avenue; that he drove over to that corner and looked in back of the house, but did not see any place where an automobile could be kept; that he then employed Mr. Burr S. Goodman; that they went out, interviewed defendant, and asked him where the car was. He said he did not know. Witness then said to him that the company were entitled to know where this car was, and the defendant said, "I am not going to tell you where the car is." He was then asked if he refused to let the company have the automobile, and defendant said, "Yes." A few days after this, witness went with Case, the constable, with a writ of replevin, for the automobile, to defendant's place of business. Case handed defendant a copy of the writ, and asked him if he would let him have the automobile. Defendant told him he did not know where it was. Case then said to him, "Do you refuse to give me the automobile?" and defendant said, "Yes."

Howard A. Case, witness for the state, testified in substance that he delivered the writ of replevin to defendant and told him that he (witness) wanted the automobile and demanded the possession of it; that he asked defendant if he refused to give it to him; that defendant refused to do so, and witness did not get the car.

Burr S. Goodman testified in behalf of the state that he went with Fassig to see defendant, and told the latter that he must either pay the notes or return the machine; that he asked defendant where the machine was, and the latter would not give him any definite response; that witness asked him if it had been stolen, and defendant said, "Yes, it has been stolen," but refused to give witness the machine or pay the notes.

This was substantially all the testimony, aside from the contract and chattel mortgage, which will he considered hereafter.

Defendant introduced no testimony, but stood on his demurrer to the evidence.

The court gave some instructions to the jury and refused others asked by defendant. The jury returned into court the following verdict:

"We, the jury in the above-entitled cause, find defendant guilty of removing and concealing property covered by chattel mortgage, as charged in the information, and assess his punishment at three (3) months city jail."

Defendant, in due time, filed a motion and supplemental motion for a new trial, and likewise a motion in arrest of judgment. Said motions for a new trial and in arrest of judgment were overruled, and defendant appealed the cause to this court.

Frank C. O'Malley, of St. Louis, for appellant.

Prank W. McAllister, Atty. Gen., and J. W. Broaddus, Asst. Atty. Gen. (Albert Miller, of Hillsboro, of counsel), for the State.

RAILEY, C. (after stating the facts as above).

1. This case was here on a former appeal, and will be found reported, as State of Missouri v. Griffin, 278 Mo. 436, 212 S. W. 877. The verdict in the former case reads as follows:

"We, the jury in the above-entitled cause, find the defendant guilty of feloniously, willfully and unlawfully removing and concealing personal property, covered by a chattel mortgage, and assess the punishment at six months in the city

Judge Williams, in disposing of the case, on pages 439 and 440 of 278 Mo., on page 878 of 212 S. W., among other things, said:

"Appellant contends that the verdict is insufficient to support the judgment, in that it is a special verdict and fails to find all of the elements of the alleged crime. The learned Attorney General confesses error in this regard.

"We are of the opinion that the point is well taken. The verdict is a special verdict. State v. Modlin, 197 Mo. 376. Being a special verdict it should find all the essential elements of the offense. State v. Bishop, 231 Mo. 411. One of the essential elements of the offense is that the act must have been done `with intent to hinder, delay or defraud such mortgage.' Section 4570, R. S. 1909.

"The verdict is also defective in other respects, but the foregoing is sufficient to show the insufficiency of the verdict, and to cause a reversal of the judgment."

The case is here again upon substantially the same facts, in which the following verdict was returned by the jury:

"We, the jury in the above-entitled cause, find the defendant guilty of removing and concealing property covered by chattel mortgage as charged in the information, and assess his punishment at three (3) months city jail."

The information herein...