State v. Jones

• Decision Date: 01 December 1920
• Docket Number: No. 21985.,21985.
• Citation: 225 S.W. 898
• Parties: STATE v. JONES
• Court: Missouri Supreme Court

225 S.W. 898

STATE v. JONES

No. 21985.

Supreme Court of Missouri, Division No. 2.

December 1, 1920.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

G. R. Jones was convicted of larceny, and appeals. Affirmed.

Defendant was charged by information filed by the prosecuting attorney in the circuit court of Dunklin county, Mo., with having stolen from the Brown Drug Company, a corporation, at Campbell, in said county, one lot of powdered drum opium; one lot of heroin tablets and one lot of morphine tablets, from the store of said company, valued at $40; that said articles were feloniously stolen and were the property of the said Drug Company.

The evidence shows that defendant came into the drug store early in the morning of June 19, 1919, and asked permission to use the toilet, which was located in the righthand corner in the rear of the drug store. On the left is Dr. Brown's office, which is separated from the rest by a partition. The prescription case runs lengthwise of the store, and is curtained off, making a blind from the back of the store. T. B. Utley, who was a clerk in said drug store and who had let defendant in to use the toilet, said:

"I heard a bottle fall, and I seen Jones (defendant) going out from behind the case towards the rear of the store and coming back through the little hallway. I goes around the case and meets Jones in this hallway, and asked him to give me the dope he had. I took hold of him to search him, and he jerked loose, ran out at the back door, and was chased across the line into Arkansas before he was captured."

A preliminary examination was had before a magistrate in that state, where defendant was sworn and testified, but we consider that incident as of no consequence, and will pay no further attention to it. Defendant voluntarily came with the officer back to Campbell, Mo., and there waived a preliminary examination. After defendant's arrest the above-named articles were taken off of him and turned over to the officer. At the time a calculation was made as to the value of said articles, and estimated by the clerk, Utley, and Dr. Brown, to be in excess of $40.

The testimony of Dr. Brown and the city marshal shows that defendant voluntarily confessed that he took said articles from said drug store. It was admitted that while he was in jail he escaped therefrom while the door was open.

The defendant entered the witness stand and admitted that he took 1,000 morphine tablets and one-half pound of opium; admitted that he had said heroin and morphine tablets, but denied that he took them from said store. He got them in Campbell, but he said a man by the name of Jack Athens, whom he had met between the time he took the articles out of the store and the time of his arrest, told him they were hidden under the corner of a coal shed near the depot at Campbell, and he got them at that place. The articles he admitted getting he said were worth $15.60.

The defendant was convicted at the July term, 1919, and drew two years in the state penitentiary, and on August 16, 1919, of said term he was duly sentenced in accordance with the verdict of the jury.

The motion for new trial contains 13 assignments of alleged error which we will deal with in the course of the opinion.

Frank W. McAllister, Atty. Gen., and George V. Berry, Asst. Atty. Gen., for the State.

MOZLEY, J. (after stating the facts as above).

1. It is contended by appellant that the court committed reversible error in overruling his ore tenus objection to the information because, as alleged, it was insufficient to put defendant on trial, in that it failed to aver he took the articles with intent to deprive the owner of the use thereof. This court has heretofore condemned and declined to tolerate such practice. State v. Loesch, 180 S. W. 877; State w. Chick (not yet [officially] reported) 221 S. W. loc. cit. 13, 14.

The information is bottomed on section 4535, R. S. 1909, and reads as follows:

"Every person who shall be convicted of feloniously stealing, taking and carrying away any money, goods, rights in action, or other personal property or valuable thing whatsoever of the value of thirty dollars or more * * * shall be deemed guilty of grand larceny."

It will be noted that the statute does not use the clause "with intent to deprive the owner of the use thereof." Nor is it necessary so to do. State v. Dewitt, 152 Mo. 76, loc. cit. 84, 53 S. W. 429; State v. Richmond, 228 Mo. 362, 366, 128 S. W. 744; State v. Swearengin, 234 Mo. 549, loc. cit. 552, 137 S. W. 880; Kelley's Cr. L. & P. (3d Ed.) p. 567, par. 642. In the volume last cited it is said that —

"The statute does not embrace or set out the elements of the offense, which are the same at common law, and they should be explained by the instructions."

We rule that the information is good.

2. It is contended that the court erred in overruling appellant's demurrer to the evidence offered by the state. A demurrer to the evidence will only be given where there is no substantial testimony to support the plaintiff's case, but where there is substantial testimony or a conflict in the testimony the matter becomes a jury question, no matter how the witnesses are divided between the two sides. This has been so many times decided by this court that we will content ourselves by citing Gutridge v. Railway, 105 Mo. 520, 16 S. W. 943; M. Forster Co. v. Guggemos, 98 Mo. 391, 11 S. W. 966; Brown v. Railway, 99 Mo. 310, 12 S. W. 655; Rinehart v. Railway, 204 Mo. loc. cit. 276, 102 S. W. 958; Porter v. Stock Yards, 213 Mo. loc. cit. 377, 111 S. W. 1136; Meily v. Railway, 215 Mo. loc. cit. 586, 114 S. W. 1013; Crossett v. Perrin, 209 Mo. loc. cit. 707, 108 S. W. 52; McGee v. Railway, 214 Mo. 530, 114 S. W. 33.

There can be no question but that the testimony was substantial on the part of the state, and that it conflicted both as to the amount of said articles and the value thereof, and it was proper to submit these questions to the finding of the jury. We think the court nisi was correct in refusing the demurrer, and we rule the point against appellant.

3. The assignments in the motion for new trial, Nos. 8, 9, 10, 11, 12, and 13 are, we think, devoid of merit and will be overruled.

4. The giving of instructions 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13, on behalf of the state, is assaulted by appellant, for that he says they do not comply with the law. Appellant has filed no brief in this court and we are not advised in what particular respect he thinks they do not comply with the law, but, as our duty requires, we have carefully examined said instructions, and we observe that instruction No. 1, covering the information, does not require the finding of the guilt of defendant to be "beyond a reasonable doubt." This is an error, and if said instructions stood alone would necessitate a reversal of the case for a new trial, but, under the rule in this state, instructions in both civil and criminal cases must be read togther as a whole and, when thus read, if they properly instruct the jury as to the law of the case before them, that is sufficient. Noble v. Blount, 77 Mo. 235; Easley v. Railway, 113 Mo. 236, 20 S. W. 1073; State v. Mathews, 98 Mo. loc. cit. 126, 10 S. W. 144, 11 S. W. 1135; State v. Noeninger, 108 Mo. 166, 18 S. W. 99C.

5. Instruction No. 5...