State v. Kolafa

• Decision Date: 02 January 1922
• Docket Number: No. 22939.,22939.
• Citation: 291 Mo. 340,236 S.W. 302
• Parties: STATE v. KOLAFA.
• Court: Missouri Supreme Court

236 S.W. 302

291 Mo. 340

STATE v. KOLAFA.

No. 22939.

Supreme Court of Missouri. Division No. 2.

January 2, 1922.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Frank Kolafa was convicted of grand larceny, and he appeals. Affirmed.

Thomas B. Harvey, of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

WHITE, C.

The defendant and one William Ehrenberg were jointly indicted in two counts, charging grand larceny, and receiving stolen property knowing it to be stolen. One automobile of the value of $350 was the property involved. After severance Kolafa was tried alone. The state elected to proceed upon the first count charging grand larceny. The defendant was found guilty, and his punishment assessed at two years in the penitentiary. The appeal is from that judgment.

The state introduced as witness one Joseph Nochta, who owned a Ford automobile, model 1916, which he said was worth $350. On the night of September 8, 1917, he left his car on Collinsville avenue, East St. Louis, and went into a store. When he came out shortly afterwards his car was gone. He reported his loss to the police of the city of St. Louis, and afterwards saw the chassis and body of the car at the police station in St. Louis. The body had been sawed into three pieces, the chassis had a different body on it, and the motor number had been filed off. He identified parts of his car by private marks he had made.

The principal witness for the state was Albert C. Biehslich. At the time of the alleged theft he was 17 years of age. Biehslich testified that he was an automobile mechanic; that he got acquainted with Ehrenberg and Kolafa in 1913; Ehrenberg was in the meat market business at 2118 Cherokee street. In the rear of the building was a garage large enough to hold at least five automobiles; also at the rear next door, under the same roof, at No. 2116, was a vacant place called the slaughterhouse. Ehrenberg owned a Crawford automobile which he used as a delivery truck in connection with his business. Re decided it was too expensive, and he wanted a Ford. Ehrenberg, Kolafa, and witness agreed that they would steal a Ford automobile for Ehrenberg's personal use. Ehrenberg directed Kolafa and Biehslich to go to East St. Louis for that purpose. Accordingly Biehslich, Kolafa, and a man named Ted, a friend of Ehrenberg, went to East St. Louis in a car belonging to Biehslich. They drove around until they saw a Ford stopped on State street or Collinsville avenue, witness did not remember which. The occupants of the Ford got out and went into a drug store across the street. Kolafa drove witness' car back of the Ford car. Ted had a gun, and said he would shoot anybody that came. Witness cranked the Ford and drove away, with Kolafa following. They drove over the free bridge and to 2118 Cherokee street, where Ehrenberg was waiting for them, and put the car in the garage. They explained to Ehrenberg, Kolafa being present, where they got the car. Kolafa and witness went away together. That was about 8 or 9 o'clock at night. Afterwards the body of the car was taken off and sawed into three pieces, the number was filed off, and a new number put on. In Ehrenberg's shop there were a set of dies and all kinds of tools for putting on numbers. Kolafa, Ehrenberg, and witness engaged in that work. The top of Nochta's car was taken from the garage into the slaughterhouse and put up on the rafters. The tires were changed and all marks of identification were removed. A roadster body bought by Ehrenberg for $25 was placed on the chassis. After that body was put on the car was sent to the paint shop and painted and some accessories put on. Later the body thus put on was removed, and a touring car body put on the chassis. The touring body was taken off a car called the Lange car, which was stolen by Kolafa and the witness at Nineteenth and Pine streets, and brought to Ehrenberg's garage. Kolafa received $30 for his part in the stealing of the first car for Ehrenberg, and witness received $25. The first car stolen was to belong to Ehrenberg, and the second car stolen was to belong to Kolafa. Before the Lange car was stolen Kolafa had received money from the Landsmann Motor Company for a Ford chassis to be delivered. Afterwards the Lange car was stolen. The body was taken off and the chassis delivered to Landsmann Garage by Kolafa and the witness. The body of the Lange car was put on the Ehrenberg car by Ehrenberg, Kolafa, and witness. Wheels off a car stolen by Kolafa and witness on Compton and Lawton avenues were put on the Nochta car, or Ehrenberg car, and were on it when the police got it. The witness then went into particulars explaining how the changes were made on the different cars for the purpose of concealing their identities and the manner in which they were stored in Ehrenberg's garage and used.

One Willman, introduced as a witness for the state, testified that his Ford automobile was stolen November 23, 1917, from Eighth street and Washington avenue. Afterwards he was shown parts of a car, but was unable to identify them. Louis A. Lange testified that his Ford touring car was stolen at Nineteenth and Pine streets. Afterwards he saw the body and the chassis at the police station; the body having been mounted on the chassis of another car.

Hayhurst, a policeman, testified that he arrested Ehrenberg, Biehslich, and Kolafa. He found the body of a touring car cut in two up on the rafters in Ehrenberg's garage. The chassis found in Ehrenberg's possession when arrested was identified by Nochta. A great many different articles were found about Ehrenberg's place, including tires and other automobile accessories. Other policemen were sworn who corroborated Biehslich as to the changes made in the several cars and the different kinds of tools found in Ehrenberg's place.

The defendant introduced evidence to show that he had a good reputation, and that October 1, 1917, he had purchased a car known as the Kolafa car, or the Lange car, and paid $140 for it, which was the car he had in his possession when arrested in February, 1918. Other evidence introduced will be noticed in considering the points presented for reversal.

I. The appellant claims there was error in permitting the state to show larcenies—stealing of automobiles—other than the one for which the defendant was on trial. As shown above in the statement of evidence, parts of two other automobiles, the Lange car and the car stolen from Compton and Lawton streets, were taken off and placed upon the Ehrenberg car.

Where there is a conspiracy between two or more parties, formed for the purpose of committing crime, and several crimes are committed in pursuance of the general plan, such crimes are so related to each other that the proof of one tends to prove the other, and, on the trial of a defendant for the commission of one, the others may be shown. State v. Lewis, 273 Mo. loc. cit. 531, 201 S. W. 80; State v. Bailey, 190 Mo. loc. cit. 280, 88 S. W. 733; State v. Cummins, 270 Mo. loc. cit. 207, 213 S. W. 969; State v. Carroll, 232 S. W. loc. cit. 702; State v. Prunty, 276 Mo. loc. cit. 376, 208 S. W. 91; State v. Hyde, 234 Mo. loc. cit. 220, 136 S. W. 316, Ann. Cas. 1912D, 191. It becomes necessary, therefore, to examine the evidence to see whether a conspiracy was sufficiently shown to let in such evidence. Biehslich testified that the three agreed that Ehrenberg should have the first car stolen, and his pick of any of the accessories of an other car to be stolen, to be known as Kolafa's car. Kolafa was to have the car known as the Willman car, stolen at Eighth street and Washington avenue. This was stolen by Kolafa and Biehslich, who described at length the manner in which the theft was accomplished.

The witness repeated that the first car to be stolen was to be Ehrenberg's car, one was to be Kolafa's car, and one to be Biehslich's car. Witness and Kolafa were engaged in stealing all of them and assisted in changing the marks of identification.

It was not necessary to allege a conspiracy to commit the crime in order to prove it was committed in pursuance of a conspiracy. The...