State v. Harper

• Decision Date: 02 January 1945
• Docket Number: 39069
• Citation: 184 S.W.2d 601,353 Mo. 821
• Parties: State v. George W. Harper, Appellant
• Court: Missouri Supreme Court

184 S.W.2d 601

353 Mo. 821

State v. George W. Harper, Appellant

No. 39069

Supreme Court of Missouri

January 2, 1945

Appeal from Mississippi Circuit Court; Hon. James C McDowell, Judge.

Reversed and remanded.

J M. Haw for appellant.

(1) The court erred in refusing to sustain defendant's plea of former jeopardy and to discharge defendant because of his previous trial and the order of the court setting aside, of his own motion, the verdict of the jury rendered February 15 1943. Secs. 22, 23, 28 and 30, Art. II, Mo. Constitution; State v. William Webster, 206 Mo. 558; State v. Snyder, 98 Mo. 555; State v. Pitts, 57 Mo. 85; State v. Brannon, 55 Mo. 63; Ex parte Ulrich, 42 F. 587. (2) The court erred in giving an oral instruction and warning the jury against failing to agree, during the voir dire examination of the panel being qualified to try the case and refusing to discharge the panel so instructed and order a new panel. State v. Cooper, 45 Mo. 64; State v. Hendrickson, 130 S.W.2d 503; State v. Potter, 125 Mo.App. 465; Secs. 4070, 4083, R.S. 1939. (3) The giving of Instruction 1 was reversible error because: It directs the jury to find the defendant guilty, if they believed and found from the evidence he took the property on or about August 11, 1942, despite the fact that the property in question was definitely proven to have been taken the night of August 11, 1942, and defendant proved positively he was in Paducah, Kentucky, all night that night. The time was of the essence. State v. Hamlin, 171 S.W.2d 716; State v. Socwell, 318 Mo. 742, 300 S.W. 680. (4) Said instruction directs the jury, in event they find defendant guilty, to assess his punishment as prescribed in Section 4457, R.S. 1939, and wholly ignored defendant's right to an instruction authorizing the jury to fix the punishment at a fine or imprisonment in the county jail, or both, as provided in Section 8404a of said statutes. State v. Mangiaracina, 125 S.W.2d 58; State v. Liston, 2 S.W.2d 780. (5) The evidence offered, and not controverted, is that the property stolen is property from a motor vehicle, the offense charged coming under Section 8404a, and it was reversible error for the court to refuse to instruct the jury that they could assess a penalty within the provisions of that section. State v. Mangiaracina, 125 S.W.2d 58; State v. Liston, 2 S.W.2d 780; State v. Bevins, 43 S.W.2d 432.

Roy McKittrick, Attorney General, and Gaylord Wilkins, Assistant Attorney General, for respondent.

(1) The court did not err in overruling defendant's plea of former jeopardy. State v. Snyder, 98 Mo. 555, 12 S.W. 369. (2) It was not reversible error for the court to give Instruction 1. State v. Hamlin, 171 S.W.2d 716; State v. Socwell, 318 Mo. 742, 300 S.W. 680; State v. Loahmann, 58 S.W.2d 309; 29 Words and Phrases, p. 457; Secs. 8367, 8404, R.S. 1939; State ex rel. Kansas City P. & L. Co. v. Smith, 342 Mo. 75, 111 S.W.2d 513; Sayles v. Kansas City Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046; State v. Wipke, 345 Mo. 283, 133 S.W.2d 354; Graves v. Little Tarkio Drainage Dist. No. 1, 345 Mo. 75, 134 S.W.2d 70; Kansas City v. J.I. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195. (3) The court did not err in giving Instruction 4. State v. Dooms, 280 Mo. 84, 217 S.W. 43; State v. Wilson, 122 S.W. 701, 223 Mo. 156; State v. Sheppard, 294 S.W. 121. (4) The evidence in this case was sufficient to support the verdict. State v. Cohen, 100 S.W.2d 544.

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

OPINION

BOHLING

George W. Harper appeals from a judgment imposing a sentence of two years' imprisonment for the larceny of "four heavy duty Firestone tires and tubes and four wheels, of the value of Four hundred dollars ($ 400.00)." He has briefed issues involving the submissibility of the State's case, former jeopardy, and rulings with respect to the instructions and the evidence.

Submissible case. Appellant's contention that the State failed to make a submissible case because there was no substantive evidence connecting appellant with the crime is without merit. The theft of four tires, tubes, and wheels, of the value of about $ 500, the property of George U. Shelby, on August 11, 1942, at Anniston, in Mississippi county, Missouri, is unquestioned. There was evidence warranting findings that on the night of the theft, between 9 and 10 p.m., appellant borrowed an eight and a half ton hydraulic jack, giving a deposit for its return, from the Jeffries garage, east of Charleston on Highway 60 and a few miles from Anniston. This jack had a flat base 4 inches wide and 6 or 8 inches long, and a jack having a 4 by 6 inch flat base was used to jack up the vehicle to remove the tires and wheels. On August 11, 1942, appellant owned a "black 1937 Chevrolet" automobile with an Indiana license plate on it. A dark Chevrolet automobile, with an Indiana license plate, was observed at the scene of the theft. The tracks left by the tires of said Chevrolet corresponded with the tread of appellant's Chevrolet tires. On August 18, 1942, certain papers covering the registration and sale of a motor vehicle, admitted to be papers of appellant kept in the glove compartment of his Chevrolet, were found on the highway nearby. Appellant was arrested about September 9th. He frankly admitted his possession of the stolen tires, tubes, and wheels, stating he purchased them for $ 150 at his home in Paducah, Kentucky, sometime soon after the theft from two strangers who came to his home after he had retired for the night. This evidence fully warranted the submission of appellant's guilt. For instance: Our cases hold that the possession of property recently stolen raises an inference of guilt and that it is for the jury to weigh the explanation given respecting an accused's acquisition of possession. State v. Nichols (Mo.), 130 S.W. 2d 485, 486[1, 3, 5]; State v. Nicoletti, 344 Mo. 86, 91[1], 125 S.W. 2d 33, 35 ; State v. Tomlinson, 352 Mo. 391, 177 S.W. 2d 493, 494[1, 2] (overruling State v. Duncan, 330 Mo. 656, 50 S.W. 2d 1021); State v. Kennon (Mo.), 123 S.W. 2d 46, 47[2-5]; State v. Slusher, 301 Mo. 285, 290(I), 256 S.W. 817, 818[1].

New trial: Former jeopardy: Waiver. The record in this case shows that appellant was tried three times nisi. The jury on the first trial, February 15, 1943, returned a verdict of guilty and assessed appellant's punishment at two years' imprisonment. Section 4125, R.S. 1939, requires motions for new trial to be filed "within four days after the return of the verdict" but authorizes the court, upon application of the defendant, to extend the time. The court, upon appellant's application, granted ten days in which to file the motion for new trial. On the fifth day of said term, February 22, 1943, the appellant being present by his attorney, the court entered an order, of its own motion, setting aside the verdict and awarding a new trial. Appellant was out on a $ 1,000 bond. Upon his application, the amount of the bond was reduced to $ 500, the sureties on the $ 1,000 bond to be thereupon released, and he thereafter entered into a $ 500 recognizance, duly approved. At the June term, 1943, of court, appellant waived formal arraignment, pleaded not guilty and was put upon his second trial. The jury were unable to agree upon a verdict and a mistrial resulted. Thereafter, at the October term, 1943, of court, appellant filed a plea of former jeopardy, which was overruled. The third trial, occurring December 8, 1943, resulted in another verdict of guilty and sentence of two years' imprisonment.

We find in appellant's original brief a curtailed presentation of an issue involving former jeopardy on the theory the trial court, absent a written application for a new trial by appellant, was without power ex mero motu to set aside the verdict of guilty and grant a new trial, which also embraces the thought that trial courts may not award a new trial to an accused who has filed a motion for a new trial on account of an error, no matter how grievous, not mentioned in the written motion. The State's point (quoting) is "The court did not err in overruling defendant's plea of former jeopardy"; but this position is extended in the argument to agree in part with appellant, the State asserting, however, that under State v. Snyder, 98 Mo. 555, 559(I), 12 S.W. 369, 374(1), and Ex Parte Snyder, 29 Mo.App. 256, 260(I), the first verdict remained in force and effect and the cause should be remanded with directions to reinstate said verdict and pronounce judgment thereon. The ultimate position taken by appellant, as disclosed in his reply brief, is that the trial court had the inherent power to set aside the verdict and award a new trial during the trial term. ^[*] We think the arguments unduly extend the legal issues necessary for a determination of the instant case and that the observations and the ruling in the Snyder case, supra, are not controlling as the cases are to be distinguished. The ultimate administration of justice has its foundation in correct rulings by courts. Snyder was charged with an assault with intent to rape an eleven year old girl. A jury found him guilty and assessed his punishment at six months in jail, the minimum. See Sec. 1263, R.S. 1879. This light punishment angered the trial court and an order was entered setting aside the verdict and disqualifying said jurors for jury service in said court. Upon retrial, Snyder's plea of autrefois convict having been overruled, the jury assessed his punishment at five years' imprisonment upon finding him guilty. The original punishment was within the statutory limits and the court's action in sua sponte setting aside the verdict constituted the substitution of its opinion for that of the jury's on the factual issue of the extent...