State v. Johnson

• Decision Date: 04 October 1943
• Docket Number: 38670
• Parties: State v. Elmer Cody Johnson, Appellant
• Court: Missouri Supreme Court

174 S.W.2d 139

351 Mo. 785

State v. Elmer Cody Johnson, Appellant

No. 38670

Supreme Court of Missouri

October 4, 1943

Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.

Affirmed.

Roy McKittrick, Attorney General, and L. I. Morris Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance under the statutes and charges defendant with burglary and larceny. Sec. 4448, R. S. 1939; State v. North, 85 S.W.2d 46 337 Mo. 470; State v. Burns, 173 S.W. 1070, 263 Mo. 593; State v. Grubbs, 289 S.W. 852, 316 Mo. 243; State v. Moss, 115 S.W. 1007, 216 Mo. 436. (2) Assignments general in character will not be considered for review by this court. Sec. 4125, R. S. Mo. 1939; State v. Kennon, 123 S.W.2d 46; State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Scott, 113 S.W. 1069, 214 Mo. 257; State v. Anno, 296 S.W. 825; State v. Nienaber, 148 S.W.2d 1024, 347 Mo. 615. (3) The evidence introduced by the State in this instance is sufficient to sustain a conviction for burglary and larceny. Sec. 4448, R. S. 1939; State v. Hedges, 295 S.W. 575; State v. Gregory, 96 S.W.2d 47, 339 Mo. 133; State v. Garrish, 29 S.W.2d 71; State v. Loges, 98 S.W.2d 564, 339 Mo. 862; State v. Raines, 98 S.W.2d 580, 339 Mo. 884; State v. Orrick, 106 Mo. 111, 17 S.W. 176; State v. Affronti, 238 S.W. 106, 292 Mo. 53. (4) No error was committed by the court in giving the instruction defining the offense of burglary and larceny as the same is an approved instruction and in proper form. State v. Tipton, 271 S.W. 55, 307 Mo. 500; State v. North, 85 S.W.2d 46, 337 Mo. 470. (5) No error was committed by the court in failing to give defendant's instruction on evidence of clothing found in the Barton home as the same was covered in other instructions given. State v. Wilkins, 100 S.W.2d 889; State v. Peterson, 154 S.W.2d 134; State v. Evans, 133 S.W.2d 389, 345 Mo. 398. (6) The court did not err in failing to give a cautionary instruction (refused) whereby jury was instructed to disregard dynamite caps and clothing found in the home of George Barton. State v. Richetti, 119 S.W.2d 330, 342 Mo. 1015; State v. Peterson, 154 S.W.2d 134; State v. Barr, 102 S.W.2d 629, 340 Mo. 738; State v. Shawley, 67 S.W.2d 74, 334 Mo. 352. (7) The court did not err in permitting testimony as to the blowing of a safe and if same was admitted it was harmless error. Sec. 4125, R. S. 1939; Also see authorities cited under Point (2). (8) No error was committed in permitting witness Roy Dix to testify as to what he found in the Barton home, in McDonald County. State v. Buckner, 80 S.W.2d 167; State v. Pease, 133 S.W.2d 409; State v. Martin, 162 S.W.2d 847, 349 Mo. 639. (9) Remarks of the prosecuting attorney in argument of the evidence in the case were not prejudicial. State v. Todd, 116 S.W.2d 113, 342 Mo. 601; State v. Pyle, 123 S.W.2d 166, 343 Mo. 876; State v. Londe, 132 S.W.2d 501, 345 Mo. 185; State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066; 23 C. J. S., sec. 1085, p. 526. (10) No error in permitting witness to demonstrate how they lifted fingerprints. State v. Allison, 51 S.W.2d 51, 330 Mo. 773, 85 A. L. R. 471; State v. James, 92 S.W. 679, 194 Mo. 268; State v. McGee, 83 S.W.2d 98, 336 Mo. 1082; State v. Jacobson, 152 S.W.2d 1061, 348 Mo. 258, 138 A.L.R. 1154; State v. Bass, 157 S.W. 782, 251 Mo. 107; State v. Combs, 273 S.W. 1037; State v. Long, 80 S.W.2d 154, 336 Mo. 630. (11) No error was committed in permitting Emma Tonnies to identify State's Exhibit H. Moon v. State, 22 Ariz. 418, 198 P. 288, 16 A. L. R. 362. (12) No error was committed in admitting in evidence State's Exhibit H. State v. Shawley, 67 S.W.2d 74, 334 Mo. 352. (13) Permitting testimony of Claude Arnold as to State's Exhibit H not error. Sec. 4125, R. S. 1939. (14) No error was committed by the court in failing to give defendant's instruction on clothing found at the George Barton home as same had been covered by other instructions. Sec. 4125, R. S. 1939; State v. Arenz, 100 S.W.2d 264, 340 Mo. 160; State v. McKeever, 101 S.W.2d 22, 339 Mo. 1066.

OPINION

Tipton, J.

The appellant was convicted in the circuit court of Jasper County, Missouri, of the crimes of burglary and larceny, and his punishment was assessed by the jury at four years in the penitentiary. That is to say, he was given two years for the burglary and two years for the larceny.

He has not favored us with a brief, but in his motion for a new trial, he makes several assignments of error which we will now discuss.

He contends that the information is defective because it is sworn to by the assistant prosecuting attorney, Russell Mallett. The information starts with the phrase that "H. Tiffin Teters, Prosecuting Attorney within and for the County of Jasper, in the State of Missouri, upon his oath . . .," however, the information is signed by the assistant prosecuting attorney and is sworn to by him. We have ruled this contention against the appellant in the case of State v. Carey, 318 Mo. 813, 1 S.W.2d 143. To the same effect, see State v. Higgins, 16 Mo.App. 559 and State v. Hayes, 16 Mo.App. 560.

Moreover, in State v. Speyer, 182 Mo. 77, l. c. 87, 81 S.W. 430, we said: "The information in this case was not verified as required by the statute, but no advantage of this failure to comply with the statute was taken by a motion to quash the information and hence the failure to verify is not open to review in this court." In this case, there was no such attack made on the information before the verdict and judgment; therefore, this question is not here for our review. State v. Brown, 181 Mo. 192, 79 S.W. 1111; State v. Majors, 237 S.W. 486.

The appellant contends there is no substantial evidence to sustain his conviction, and that his demurrer to the evidence should have been sustained. The evidence on behalf of the State tended to show that during the night of August 6, 1942, the Palace Clothing Store in Joplin, Missouri, operated by Joe and Max Goldstein, had been broken into and about sixty suits of clothes and fifty to seventy-five pairs of trousers were missing. The store had been entered through the rear window, the glass broken out, and the iron bars on the outside partially removed and the rear door broken open. The outside door of the safe had been blown open. A pile of clothing was on the top of the safe, and some clothes were near the door. Some of this clothing was burned and apparently used to muffle the sound of the explosion. Some of the clothing that was taken from this store that night was later found in the home of George Barton in McDonald County, Missouri. One of the missing coats had a laundry mark on it which was "K. Johnson." There was testimony that the appellant was at the Barton home on the night of August 6, 1942, and he was also there during the morning of August 7, 1942. There were, also, one hundred and forty-six sticks of dynamite found at the Barton home.

The State testimony was to the effect that the fingerprints on the broken glass window in the rear of the Palace Clothing Store were the same as the fingerprints taken from the appellant.

The defense was an alibi.

Section 4440, R. S. Mo. 1939, declares: "Every person who shall be convicted of breaking and entering any building, . . . in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal . . . shall, on conviction, be adjudged guilty of burglary in the second degree."

Section 4448, R. S. Mo. 1939, reads:

"If any person in committing burglary shall also commit a larceny, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment, and, on conviction of such burglary and larceny, shall be punished by imprisonment in the penitentiary, in addition to the punishment hereinbefore prescribed for the burglary, not less than two nor exceeding five years."

Under the facts outlined above, there can be no doubt that the evidence is sufficient to show burglary and larceny. We, also, think the evidence was sufficient for the jury to say the burglary and larceny were committed by the appellant. The fingerprints on the broken window glass were testified to as those of the appellant. The stolen clothes were found at the home of George Barton, and the evidence showed that the appellant was at that home the morning after the crime had been committed. The evidence, also showed the iron safe at the store was blown open and that dynamite sticks were found at the Barton home, a place where the appellant was frequently seen during the summer of 1942.

Evidently, the jury did not believe the appellant's defense of an alibi. The demurrers were properly overruled.

The appellant contends it was error to admit testimony of the clothing and sticks of dynamite found in the Barton home. It is to be recalled that the clothing found at the Barton home was identified as the property of the Palace Clothing Store, and that the appellant was a frequent visitor at that home; in fact, that he was here the night of the burglary and there the next morning. Under these circumstances, we think there was no error in reference to the clothing found at the Barton home, as it tended to connect the appellant with the burglary of that store. State v. Richetti, 342 Mo. 1015, 119 S.W.2d 330; State v. Pease, 133 S.W.2d 409; State v. Barr, 340 Mo. 738, 102 S.W.2d 629; State v. Martin, 349 Mo. 639, 162 S.W.2d 847. Nor do we think it error to admit the fact that dynamite was found at the Barton home. In view of the fact that the door of the iron safe in the Palace Clothing Store was blown open, such evidence tended to connect the appellant with the crime.

The appellant contends the court should have given his...