State v. Lackey
Decision Date | 29 November 1910 |
Citation | 132 S.W. 602,230 Mo. 707 |
Parties | STATE v. LACKEY. |
Court | Missouri Supreme Court |
Appeal from Circuit Court, St. Clair County; Chas. A. Denton, Judge.
Andrew Lackey was convicted of burglary and larceny, and he appeals. Reversed and remanded.
Ralph P. Johnson and Theo. O. Williams, for appellant. E. W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for the State.
Andrew Lackey, the appellant herein, was prosecuted by information in the circuit court of St. Clair county for burglarizing the depot of the St. Louis & San Francisco Railroad Company, located at the town of Osceola, in said county, and for having stolen therefrom one suit of clothes, the personal property of one Roe Callon, of the value of $12.50. He was thereafter tried and by a jury found guilty of burglary in the second degree, and his punishment assessed at three years in the penitentiary, and also found guilty of larceny, as charged, and his punishment assessed at two years in the penitentiary. After timely motions for a new trial and in arrest were filed and by the court overruled, appellant brings his cause to this court by appeal, and assigns error.
The evidence for the state tended to prove that the Simmons-Burks Clothing Company is located at Springfield, this state, and is engaged in the wholesale of ready-made clothing. Some time in the month of July, 1908, J. J. Jones, a traveling salesman for said company, called on a merchant by the name of J. H. Foster, who was engaged in business at Monegaw Springs, near Osceola, for the purpose of selling him a bill of clothing. As appellant challenges the sufficiency of the evidence to prove the ownership of the property alleged to have been stolen, and as charged in the information, it is important to set out the evidence offered by the state upon that issue. Roe Callon, the alleged owner of the suit of clothes, was not a witness at the trial, neither was Foster, his employer, and the only evidence in the record to prove ownership in Callon is that given by Jones, the salesman, and is as follows:
The clothes were shipped by express to J. H. Foster, Monegaw Springs, being billed "collect," and it was explained that the word "collect," as used in the billing, meant that the consignee, Foster, should pay the express charges on the delivery of the goods, but was not required to pay to the carrier the purchase price. No evidence was introduced as to the terms of the bill of lading or contract between the clothing company and the express company on which the shipment was made, except concerning the express charges, as already stated. The evidence tended to prove that on the night of August 1, 1908, while the goods were in transit from Springfield to Monegaw Springs and in possession of the express company, stored in the depot of the railroad company at Osceola, the depot was burglarized by the breaking of a pane of glass in the window, and through the opening thus made the suit of clothes was stolen. Shortly thereafter the defendant was seen wearing the suit of clothes, which was fully identified as the suit shipped by the clothing company and stolen from the depot at Osceola. The defendant was a witness in his own behalf and sought to explain his possession of the property thus shown to have been recently...
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