State v. Levan

• Decision Date: 31 December 1924
• Docket Number: (No. 25670.)
• Citation: 267 S.W. 935
• Parties: STATE, v. LEVAN.
• Court: Missouri Supreme Court

267 S.W. 935

STATE, v. LEVAN.

(No. 25670.)

Supreme Court of Missouri, Division No. 2.

December 31, 1924.

Appeal from Circuit Court, Scott County; Fred Kelly, Judge.

William Levan was convicted for knowingly receiving stolen property, and he appeals. Affirmed.

B. Hugh Smith, of Cape Girardeau, for appellant.

Jesse W. Barrett, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

On March 5, 1923, an information was filed in the circuit court of Scott county, charging that the defendant, at said county, on or about January 29, 1923, unlawfully and feloniously did buy and receive eight 12-pound caddies of star tobacco of the value of $71.04, of the goods and chattels of the St. Louis-San Francisco Railway Company, a corporation, then lately before feloniously stolen, taken, and carried away, he the said William Levan, then and there well knowing the said goods and chattels to have been feloniously stolen, taken and carried away as aforesaid, etc. The information is based on section 3331, R. S. 1919. The case was tried and the jury returned the following verdict on March 15, 1923:

"We, the jury, find the defendant guilty of buying stolen property knowing it was stolen when he bought it and as charged, and that the value of the goods so bought was of the value $67.20, and we are unable to agree upon the punishment."

The court fixed the punishment at two years' imprisonment in the penitentiary. Motions for new trial and in arrest were filed and overruled, the defendant was duly sentenced to imprisonment in the penitentiary for a term of two years, and appealed.

1. The first complaint in the motion for new trial is that the court erred in refusing to quash the panel of jurors for the reason that several of them were spectators and jurors in the case of the State v. Jeffries, tried March 12, 1923, at which it was proven that Jeffries had bought whisky and had seen gambling going on in Levan's pool room within 60 days prior to the trial, and that such evidence was prejudicial to defendant and prevented the jury from giving defendant a fair trial. The defendant's counsel interrogated several of the jurors, each of whom on his voir dire said nothing he had heard would affect or influence his verdict in the case on trial, and that no reference was made by any witness at the Jeffries trial to the charge against. Levan, or to any fact or circumstance in connection therewith. The motion to quash was properly overruled.

2. The evidence for the state was to the effect that the Liggett & Meyers Tobacco Company, on January 27, 1923, shipped 19 boxes of plug tobacco and 3 cases of smoking tobacco over the St. Louis-San Francisco Railroad (locally known as the Frisco), from St. Louis, Mo., in car 124521 S. F., consigned to Blackwell & Taylor at Morehouse. This shipment included one package of eight 12-pound caddies of star plug tobacco, strapped together, of the value of $67.28, as shown by the evidence. The car was sealed, and, when it arrived at Chaffee, in Scott county, it was sealed and in good condition. Theodore Freeman, who admitted he had served a term in the reform school for burglary and larceny, testified that on the evening of January 29, 1923, at about a quarter to 7 he had eight caddies of tobacco; got two out of the Frisco car and the other six on the west side of the track, over on the west side of the freight house, south end of the Frisco yards, in Chaffee, Mo., down close to the ball park; some was out of the car, two boxes were in it. He took the caddies of tobacco behind Kroger's store, set them down in the alley and went over and tried to sell the tobacco to Mr. Levan. Levan said he would give Freeman $16 for it. Freeman first told Levan that he had found the tobacco out at the ball park, then said he got it over on the team tracks. This was just after Levan had paid him. When he finally made the deal, Freeman told Levan he had brought it over behind Kroger's store. Freeman said the car was open on the west side; he did not know who broke into it; he delivered the eight caddies to Bill Levan about 7:30 at night; it was dark. On cross-examination he testified:

"I carried it through the alley in back of Levan's pool room. First I told him I found it and after he paid me for it, the next thing I told him where I got it. I told him I got two out of the car—the other six were already out."

Tom Scott, deputy sheriff, identified the eight boxes of star tobacco. He got them out of Levan's pool room. Levan told witness he bought them from Theodore Freeman. He said Freeman came there and wanted to sell him this tobacco and he hesitated about buying it for he was confident it was stolen; finally he said:

"He just insisted until I bought it; it was so cheap I couldn't hardly keep from buying it."

He said he knew the Freeman boy had been in the reform school but did not know what he had been there for.

The eight caddies of tobacco were identified as part of the shipment of tobacco from Liggett & Meyers Tobacco Company above mentioned. On checking up the waybill of this shipment in the car referred to, it was found short this package of eight caddies. The car was on house track 1 at the south end of the freight house.

William Levan, the defendant, testified:

"I bought eight caddies of star tobacco from Theodore Freeman last January. I was in my pool room in Chaffee, Mo.; he told me he found it in the ball park by the Frisco railroad. I told him I didn't want it; he turned and started off and came back and said: `I want to sell it to you, it's all right.' I told him I would take it and he delivered it to me. He said nothing about the tobacco being stolen. I never denied to Tom Scott or anybody that I bought this tobacco from Freeman. I took Scott to my pool room and delivered this tobacco to him. I never told Scott or anybody else this boy said anything about this tobacco being stolen. I knew nothing about it having been stolen; if I had known it I wouldn't have bought it. At the time we made the deal, Freeman had the tobacco out back of the pool room. I don't know whether he said he had it out there. When he first came in he told me he had eight caddies of tobacco; told me he found it down there in the ball park and would take $16 for it; said there was eight caddies of star tobacco. I told him, `All right.' It was brought in at the back door about 7:30."

3. The appellant, in his motion for new trial, does not challenge the sufficiency of the evidence that these eight caddies of tobacco were part of the shipment consigned to Blackwell & Taylor at Morehouse and delivered on board car 124521 S. F.; that the car was sealed and arrived at Chaffee sealed and in good condition, or that the eight caddies of tobacco which he admits he bought from Freeman were a part of this particular shipment. His contention is that at the time he bought the tobacco he did not have actual knowledge that it was stolen property; that the evidence fails to show that six of the caddies were stolen and the value of the two stolen caddies was less than $30, and that the court erred in not directing the jury to return a verdict for the defendant as to the charge of buying stolen property of over the value of $30.

In State v. Richmond, 186 Mo. 71, 87, 84 S. W. 880, 884, Judge Gantt quoted from Cobb v. State, 76 Ga. 664:

"Knowledge may well be deduced from conduct and behavior, the character of the person from whom received, and the kind of goods, and the hour when received."

The defendant received the caddies of tobacco, not in the usual course of business, but under very...