State v. Harper, 39069.

• Citation: 184 S.W.2d 601
• Decision Date: 02 January 1945
• Docket Number: No. 39069.,39069.
• Parties: STATE v. GEORGE W. HARPER, Appellant.
• Court: United States State Supreme Court of Missouri

184 S.W.2d 601 STATE
v.
GEORGE W. HARPER, Appellant. No. 39069. Supreme Court of Missouri. Division Two, January 2, 1945.

[184 S.W.2d 602]

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 Fed. 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.

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.

[1] 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...