State v. Koplan
| Decision Date | 25 February 1902 |
| Citation | 66 S.W. 967,167 Mo. 298 |
| Parties | THE STATE v. KOPLAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferris Judge.
Reversed and remanded.
S. S Bass and Thos. B. Harvey for appellant.
(1) It is bad pleading to allege various articles of different kinds to be of an aggregate value. Nothing appears on the face of the indictment to show that the books, the one article proved, was of value more than thirty dollars. The testimony at the trial may show it, but it must appear by the indictment that the grand jury so found. This is horn-book law. Wharton's Cr. Pl. and Pr. (9 Ed.), sec. 206 to sec 217, inclusive; Clark's Crim. Proc., p. 226. (2) Dryden stole the goods of his master and Koplan bought them of Dryden. The custody of the goods being in Dryden, he committed larceny of them in selling them and authorizing Koplan to remove them; and in buying them and taking them into his possession Koplan was guilty under the section denouncing the buying or receiving of stolen property. Dryden only committed a trespass against the ownership of Judge Spencer, and the property had the character of stolen property in Dryden's possession when he delivered it to Koplan. The asportation by Koplan was Dryden's asportation, and was the completion of Dryden's offense of stealing and the beginning of Koplan's offense of receiving. If Koplan had stolen the books, the property could have been laid in Dryden, the bailee; but as against the ownership of Judge Spencer, Dryden alone was the thief and Koplan the receiver. The price was agreed on one day and Koplan came the next day and took the books away. An offer by servant to sell is sufficient proof of conversion. Rapalje on Larceny, sec. 35; State v. Schingen, 20 Wis. 74. Removal upon order of the thief is an asportation by him. 2 Bishop New Crim. Law, sec. 798; Reg. v. Grunall, 9 Car. & P. 365; State v. Honig, 78 Mo. 249. (3) The defense was an alibi. Therefore, the court should have given an instruction upon this position and only defense upon which appellant "planted" himself and should have told the jury that if they had a reasonable doubt of his presence, they should acquit. State v. Taylor, 118 Mo. 153. (4) The court should have given appellant's instruction on the subject of an accomplice's testimony. If the instruction was not properly drawn, yet it was sufficient to call the attention of the court to the matter, and the court should have drafted a proper instruction. State v. Adler, 146 Mo. 18; State v. Clark, 147 Mo. 20; State v. Davis, 141 Mo. 522. It has been repeatedly held in this State that the court should warn the jury to be cautious in convicting upon the testimony of an accomplice unless corroborated by other witnesses, not connected with the crime, as to matters material to the issue. State v. Chyo Chiagk, 92 Mo. 413; State v. Walker, 98 Mo. 109; State v. Harkins, 100 Mo. 672; State v. Black, 143 Mo. 166; State v. Sprague, 149 Mo. 423.
Edward C. Crow, Attorney-General, and Jerry M. Jeffries for the State.
The evidence clearly corroborates the accomplice, Dryden; hence, the instruction as to the caution with which the jury should receive the evidence of the accomplice was properly excluded, and even though the instruction should have been given, there is sufficient evidence to convict the defendant and exclude the evidence of Dryden; hence, there was no error. State v. Pratt, 98 Mo. 482; State v. Miller, 106 Mo. 606; State v. Black, 143 Mo. 166. One can be convicted upon the uncorroborated testimony of an accomplice, but in that case the jury must be cautioned by an instruction about receiving such testimony and convicting the defendant on such evidence. Under all the law upon the question, it being necessary to give such instructions on what evidence will justify a refusal, it seems that where there is no evidence corroborating the accomplice such an instruction must be given, but where there is evidence corroborating the accomplice in his testimony such an instruction need not be given. State v. Jackson, 106 Mo. 174; State v. Woodlark, 111 Mo. 248; State v. Pratt, 98 Mo. 482; State v. Walker, 98 Mo. 95.
Defendant was convicted in the circuit court of the city of St. Louis of grand larceny in feloniously stealing a number of law books and his punishment fixed at two years' imprisonment in the penitentiary, under an indictment charging him and one Louis Dryden with stealing "two dozen silver forks, two dozen silver tea spoons, four hundred law books (or more), one shotgun, three clocks, one seal sacque, one opera cloak, and one lot of bed clothing, of the aggregate value of fifteen hundred dollars, the property of one Selden P. Spencer." He appeals.
The facts briefly stated are about as follows:
In the absence of Judge Selden P. Spencer and his family from their home in the city of St. Louis, during the summer and the month of September, 1900, his residence was left in the charge of one Louis Dryden, a negro servant. In his residence Judge Spencer had his law library of some four or five hundred books.
Sometime in September, 1900, Dryden met the defendant near Judge Spencer's residence, when defendant asked Dryden if there wasn't something there he could buy. This was on the morning of September 27, 1900, at which time Dryden sold defendant some bottles in the cellar. While they were in the cellar getting the bottles defendant asked Dryden if he had any books down in the cellar. He told him yes, and they went to the third floor where the books were, and got from a trunk some rags, which Dryden sold to defendant, and while there Dryden also sold him the law books for four dollars and fifty cents, which defendant returned with his wagon the next day and hauled away. Dryden rendered him no assistance in anyway in removing the books. On his return home the last of September, Judge Spencer found that his law books had been taken, the bedclothing from all of the beds, quilts, spreads, and all of his personal clothing that had been left there, his own and Mrs. Spencer's clocks and silverware, and Judge Spencer's gun had all disappeared. Upon an examination he found that they had been stolen and the negro left in charge had disappeared. He was afterwards apprehended in Kansas City, Missouri, and brought back to St. Louis. It appears from the record and the evidence that Dryden had perpetrated another crime; that he had forged Judge Spencer's name; that he entered a plea of guilty and was sentenced to the penitentiary for five years for that crime.
Before the case against Koplan came for hearing, a nolle prosequi was entered as to the charge against Dryden, and while under sentence on a term in the penitentiary he was used in the trial of this cause as a witness against the defendant.
It is said that the indictment is bad, in that, the various articles therein alleged to have been stolen were of an aggregate value, and as there was nothing on the face of the indictment to show that the books, the only articles proven to have been stolen, were of the value of more than thirty dollars, that the instruction to acquit, requested by defendant at the close of the State's evidence, should have been given.
The action of the court in this regard was a matter of exception and as the record does not show that an exception was taken and saved at the time to the court's ruling...
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