State v. Harris

• Decision Date: 13 November 1961
• Docket Number: No. 2,No. 48590,48590,2
• Citation: 351 S.W.2d 713
• Parties: STATE of Missouri, Respondent, v. James Harold HARRIS, Appellant
• Court: Missouri Supreme Court

Page 713

351 S.W.2d 713

STATE of Missouri, Respondent, v.James Harold HARRIS, Appellant.

No. 48590.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1961.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 11, 1961.

William B. Spaun, Hannibal, for appellant.

Thomas F. Eagleton, Atty. Gen., Ike Skelton, Jr., Special Asst. Atty. Gen., for respondent.

BARRETT, Commissioner.

A jury found James H. Harris guilty of burglary and stealing and fixed his punishment at three years' imprisonment for the burglary and two years for stealing.While he does not question the sufficiency of the evidence to sustain the conviction, the circumstances, as the jury could find them, have a material bearing on his claim that he is entitled to a new trial because of the closing argument of the prosecuting attorney and the giving and refusal of certain instructions.

Miss Louise Clayton keeps furnished and owns a two-story frame residence one mile west of Rensselaer in Ralls County.October 13, 1959, she returned to her farm home after a month's absence to discover that the house had been entered and that several pieces of furniture were missing.Among the missing items were eight dining room chairs, a bedroom chair, two end tables, a clock, a pair of brass candlesticks, two wrought-iron planters and a set of mounted steer horns.All of these furnishings were heirlooms and antiques, the eight dining room chairs were made of 'wormy chesnut.'Investigation revealed that a downstairs window had been pried and propped open with a stick and it was apparent that 'something' had been taken out through the window.About 1:30 in the afternoon Miss Clayton heard a motor vehicle enter the driveway, she looked out and saw a green pickup truck with a light top, and she saw that the two men in the truck were 'colored men,' the driver much heavier than his companion.She did not get the license number of the truck and subsequently could not identify the two men, 'they backed out of the drive and drove very swiftly away.'

The principal witness against the appellant was Robert Earl Gardner, also a colored man.He said that while living in Hannibal he and Harris bought and sold junk together.On September 29, 1959, (the alleged date of the burglary and theft)they drove into the country near Rensselaer in Harris' green Chevrolet pickup truck looking for junk.They drove up to the Clayton farm home and 'there was a lot of weeds and things,' so they'took a look to see if there was any scrap or things laying around.'They found a couple of pieces of metal in a pile of tin cans and then they looked in a downstairs window and saw that 'everything was covered.'According to Gardner they entered the house through the unlocked window. 'we raised it together' and propped it open with a stick.Gardner got back outside and Harris 'handed me chairs' and other furniture through the window and Gardner placed it in the truck.They drove to Hannibal where Harris listed several of the articles, particularly the chairs, with Bridgman's auction.The next day they attended Bridgman's auction but the bids on the chairs were too low and Harris bid them in.He and Gardner again placed them in Harris' green truck and drove to Dierke's, a dealer in secondhand furniture, but Dierke only took the clock and the mounted horns for which he eventually paid them eight dollars.When they parted that day Gardner took an end table and a footstool to his home, (later he gave these two articles to the sheriff) and when Harris drove away the chairs were on his truck and Gardner never saw them again.Gardner did not remember the date but 'maybe two weeks' after their first trip, he and Harris made another trip to the Clayton farm in the green truck.'We started to drive up in the yard and I saw the window was up and so I said somebody is in there, I saw a woman in there so we backed up and left.'

In his investigation the sheriff found one of the end tables in the home of Harris' mother, he found the receipt where Harris had listed the items at auction and he recovered the clock and mounted horns from Dierke but he was unable to find the missing chairs.After Harris was arrested he told the sheriff and a highway patrolman that 'he would try to return the chairs if we would let him out of jail.'The sheriff would not release him and he denied any knowledge of the 'whereabouts' of the chairs and 'refused to tell us anything except to lay off of him.'Harris was released on bond and in a few days brought six or seven chairs to the sheriff but only the bedroom chair and four of the dining room chairs belonged to Miss Clayton.Harris took the two chairs that did not belong to Miss Clayton and in a day or so returned with two more of her wormed chesnut chairs.But he refused to tell the sheriff where he had been or where he got the chairs.

Testifying in his own behalf Harris said that he had 'been in that vicinity' with his green truck, but he denied that he had ever been in Miss Clayton's house or that in October he had driven into her driveway and he emphatically denied that he was with Earl Gardner when the furniture was stolen.His version of how he'got in possession of the furniture' was this: 'Well, as Earl said, we were junking.We would go out and get tin and what not, I can't quite recall when it was, but anyway Earl was telling me about a load of furniture a fellow had.Earl come got me and told me about the furniture.I saw the furniture.I bought it because I could get a profit off of it.'He said that 'this fellow' had the furniture on a truck on Broadway in Hannibal and that he paid him 'somewhere in the neighborhood of $15.00'(its value was approximately $525.00).He admitted listing the furniture with Bridgman, the sale of the clock and horns to Dierke, that he took an end table to his mother and, he says that Earl 'took his two pieces.'As to the chairs, he said, 'We took them to Quincy which we sold.I made a small profit, somewhere around $30.00 that we sold and split the money.'He says that he sold the chairs to some colored peoplehe met through Earl, 'up around 10th Street, a tavern up there.'He thought the purchaser of the chairs was a man named 'Hudson' or, later, 'Hutchison' and the seller was 'Elliott.'But he was unable to further identify any of these people and did not know where they lived.After his release on bond, however, he'went back to the guy and he had sold them,' but he located the chairs, refunded the money he had received and returned six or seven of them to the sheriff because 'I told the Sheriff I would try to help him locate these chairs which I did.'

In addition to his own testimony, Harris had three witnesses, his pastor and two former employers, who testified to his good requtation for 'morality, veracity and good citizenship.'In rebuttal the highway patrolman testified that his reputation for 'truth, honesty and veracity' was 'very bad.'

In these background circumstances the meritorious question is whether the appellant is entitled to a new trial because of the closing argument of the prosecuting attorney.The appellant claims that the argument was manifestly inflammatory, that it was unfair and improper and that the prosecuting attorney thereby infringed his right to a fair trial.That part of the argument complained of in the motion for a new trial and with some bearing on the problem presented is this (emphasis supplied):

'Mr. Spaun (appellant's counsel) says that Mr. Harris has made some effort toward rehabilitation because of another crime which he has committed in the past, possession of narcotics in Iowa.Is it a part of his rehabilitation that he comes...