State v. Lackey

Decision Date29 November 1910
Citation132 S.W. 602,230 Mo. 707
PartiesSTATE v. LACKEY.
CourtMissouri 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.

KENNISH, J.

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: "I called on Mr. J. H. Foster of Monegaw Springs, I think it was July 23d of last year, and, of course, to sell a bill of clothing. That is the first time I ever met Mr. Roe Callon. He was clerking for him. * * * Mr. Foster said he didn't have room at that time to put in clothing, but that later he expected to buy some clothing from us, and said he would like for me to sell his clerk a suit; that he had been talking of wanting to go to Clinton; and that he hated to spare him. And I said, `Certainly, I will do so.' And I took him down to the hotel, and he and his mother selected a suit, 6,569, the number, and I took his measurement, and tried on the coat—I didn't carry anything of the suit except the coat—and told him a 35 coat and vest would fit him nicely; I tried one of them on, and his mother decided with me. Then I took his waist measure for the pants, which was 32 in the length of the leg, taking, as we clothing men do, the crotch measure, which would be 33; and of course, I sent him the order, which was to be shipped, you know, to Mr. Foster, who said he would send a check immediately on receipt of the goods. Q. At what price did you sell Callon this suit of clothes? A. $12.50. That is just what I sell the others that I sell; that is, the wholesale price."

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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84 cases
  • State v. Davis
    • United States
    • Missouri Supreme Court
    • July 11, 1935
    ...Cantrell, 234 S.W. 802, 290 Mo. 232; State v. Starr, 148 S.W. 867, 244 Mo. 161; State v. Harris, 134 S.W. 536, 232 Mo. 317; State v. Lackey, 132 S.W. 602, 230 Mo. 707; State v. Palmer, 88 Mo. 568; State v. Branstetter, 65 Mo. 155; State v. Stonum, 62 Mo. 596; Hardy v. State, 7 Mo. Roy McKit......
  • Stassi v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 8, 1931
    ...112 A. 38, 269 Pa. 39; Pearson v. State, 226 S. W. 538, 143 Tenn. 385; Duroff v. Commonwealth, 232 S. W. 47, 192 Ky. 31; State v. Lackey, 132 S. W. 602, 230 Mo. 707. Counsel had no right, however, to assume that the court, in the absence of a request, would instruct upon the evidence concer......
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    • United States
    • Missouri Supreme Court
    • March 21, 1912
    ...cit. 604, 102 S. W. 504; State v. Kelsoe, 11 Mo. App. 91; Id., 76 Mo. 505; State v. Nicholas, 222 Mo. 425, 121 S. W. 12; State v. Lackey, 230 Mo. 707, 132 S. W. 602. According to the foregoing authorities, it was necessary for the information of the jury that they should have been instructe......
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    • Missouri Supreme Court
    • September 11, 1961
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