State v. Lippman

• Decision Date: 04 June 1920
• Docket Number: No. 21904.,21904.
• Citation: 222 S.W. 436
• Parties: STATE v. LIPPMAN.
• Court: Missouri Supreme Court

222 S.W. 436

STATE v. LIPPMAN.

No. 21904.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

Appeal from St. Louis Circuit Court; Charles B. Davis, judge.

Benjamin Lippman was convicted of receiving stolen property, and he appeals. Affirmed.

On October 26, 1918, respondent Sled in the St. Louis circuit court an information in two counts, charging defendant with grand 'larceny, and receiving stolen property, with knowledge that it had theretofore been feloniously stolen. At the close of respondent's evidence in chief, the state elected to stand on the second count of said information, which charged defendant with receiving stolen property, for that, on September 11, 1918, at the city of St. Louis, in the state of Missouri, he did buy, receive, and have one horse, one wagon, one set of single harness, and 1,200 burlap bags, all of the value of $750, of the goods, chattels, and personal property of Max Zimmerman and Nathan Jaffie, with knowledge that the goods aforesaid had lately been feloniously stolen from said Zimmerman and Jaffie. On December 11, 1918, defendant waived formal arraignment, and entered a plea of not guilty. On the last-named date, defendant was put upon his trial, before a jury duly impaneled and sworn to try the cause. On the same day, the jury returned into court the following verdict:

"We, the jury in the above-entitled cause, find the defendant guilty of receiving stolen property, as charged in the second count of the information, and assess the punishment at imprisonment in the penitentiary for two years."

State's Evidence.

The evidence on behalf of the state tended to prove the following facts:

Max Zimmerman lived at 2520 Cora avenue, in St. Louis, Mo., and, with Nathan Jaffie, was engaged in the secondhand bag and burlap business at 2013 Morgan street, in said city, under the name of the "International Bag Company." On September 10, said Zimmerman closed his business about 6 o'clock p. m. At that time, there was a supply of bags and burlap on the second and third floors of said store building, and his horse, harness, and wagon were in the stable. The latter and said store building were connected by a yard. Before leaving said building, Zimmerman locked the doors and windows of same. On September 11, he came to his place of business about 7 o'clock a. m., and found that the entrance door was locked, the lock on the other door broken, and said door open; there being a front door on Morgan street, and four doors on the front part of the building. Upon going into his place of business, he found that a piece of glass had been cut out of the door, enabling the latter to be opened; that about 1,500 bags were gone, of about the value. of $500, and that his horse, harness, and wagon, of about the value of $150 or $175, were missing. About 7:30 o'clock on the morning of September 11, he reported his loss to the Fourth District Police Station. Thereafter he saw his missing property in the stable, at the Central Police Station. He identified the property, and it was turned-over to him. He saw Dunn and another man at the said police station and noticed that their clothes were dusty from the dust off the stolen bags.

Cross-examination: On cross-examination, Zimmerman testified that he remembered defendant; that he never saw appellant around or near his place of business; that defendant never worked for him, nor was he connected with their business; that he did not know O'Donnell or Dunn; that when lie saw defendant at the police station the latter was dressed in ordinary trousers, a shirt, without collar or vest, and had on button shoes, which were unbuttoned.

Nathan Jaffie testified that he was a partner of Zimmerman, the International Bag Company being a partnership; that they owned the stolen property together; that they handled burlap, jute, and cotton bags; that the burlap bags presented in court were those that had been used for alfalfa meal: that he was out of town at the time of the burglary, and did not know how many bags were taken; that when he returned two days afterwards, the bags had been brought back.

Edward Feeney testified that he was a metropolitan policeman, and connected with police headquarters; that about 6:30 o'clock on the morning of September 11, he, with Officer Thomas Murphy, saw defendant, O'Donnell, and Dunn on Eighteenth street, in the city of St. Louis. At this time said officers were on the east side of the mouth of the alley near O'Fallon street. When first seen, O'Donnell and Dunn drove in from Biddle street with a horse and wagon, the latter being loaded with sacks. Dunn was driving, and they were both sitting on the front seat. They drove north on Eighteenth street from Biddle, and pulled in near Division street, on Eighteenth street, where Dunn got off the wagon, and hitched the horse to a pole on the east side of the street. O'Donnell stayed on the wagon, rolled and lighted a cigarette. Dunn walked north, on Eighteenth street to O'Fallon street, and at 1819 O'Fallon he knocked at the door. A man came to the door, and, holding it halfway open, he and Dunn whispered together four or five minutes. Dunn then came down off the steps, and started back the way he had come, a distance of about 300 yards. Dunn had gone about 100 feet from the door, when defendant came out of his residence, wearing a white shirt, trousers, and with his shoes unlaced. He went towards the wagon, and caught up with Dunn. At this time; O'Donnell was still seated on the wagon, smoking a cigarette. Defendant got on the wagon and turned over the sacks, looking at them several times. Then they had some kind of talk on the wagon. Witness and Murphy were then about 50 feet away. They all three got off the wagon. Defendant gave O'Donnell some United States currency. O'Donnell and Dunn then went to a saloon on the west side of the street, near Division street, and had been in there about three minutes, when witness and Murphy went into the saloon. As they went in, O'Donnell dropped some bills on the floor, and put his foot on them. Officer Murphy pushed him aside, and picked up two $1 bills. The officers then placed O'Donnell and Dunn under arrest, and took them out the same side door by which they had entered the saloon. Defendant was still seated on the wagon. When he saw the officers coming, he jumped off the wagon and ran toward Eighteenth and Biddle streets, where Officers Stangler and Mitchell caught him. When Feeney and Murphy brought Dunn and O'Donnell to where appellant was, the latter refused to make a statement. Zimmerman was notified that his property was found, came to the police station, and identified the same. The officers examined the sacks on the wagon, and noticed a greenish dust on them. The same kind of dust was on appellant's shoes and trousers. No other bag concern in the city dealt in bags that had a similar dust on them. When Feeney brought the three men in for identification, Dunn said: "Well, you boys sure does give a man a rap."

Cross-examination: Feeney testified, that "rap" meant doing their duty, bringing the men up to see if there was any dust on them the same as on the bags; that appellant never said a word at any time; that the officers above mentioned started out together that morning, and he could see Stangler and Mitchell, about 100 yards away, while he was near the mouth of the alley aforesaid; that he had locked up Dunn and O'Donnell time and again; that on the night in question the officers aforesaid were out on night burglary and larceny duty, their hours being from 11 p. m. to 7 a. m.; that the bills introduced in evidence were the bills exchanged as above set forth, and that appellant took them off a roll of bills. Feeney further testified that he searched O'Donnell at the police, station, and found no money on him; that he was never at appellant's home; that he did not say to appellant's wife that he had a previous appointment with him; that he did not take defendant's coat or ask for it on such visit.

Thomas P. Murphy testified that he was a police officer; that he received directions to watch defendant's house, and watched it for two consecutive nights, being so engaged on the morning of the 11th of September, 1918. Murphy's testimony corroborated that of Feeney, with the exception as to the time when defendant was taken into custody by Stangler and Mitchell, stating that appellant started across the street and was arrested after he had handed over the money, and before Dunn and O'Donnell went into O'Leary's saloon; that when they came out of the saloon, appellant was in charge of Stangler and Mitchell. Murphy testified that he marked the money given in evidence.

Cross-examination: Murphy testified that after the money was passed, defendant did not get back on the wagon, and did not run across the street; that he could not positively say he saw any money pass, but that it looked like green bills, looked like money; that he searched O'Donnell and Dunn at the police station, and found no money on them; that he did not go to defendant's house after the arrest and talk with his wife.

Albert Stangler testified that he was a police sergeant, and was connected with police headquarters. His testimony corroborates that of Murphy and Feeney. He also testified that when the officers came back from the saloon with Dunn and O'Donnell in their custody defendant, who was still sitting on the wagon, got off the wagon and walked rapidly south on Eighteenth street towards Biddle street where he was arrested at the corner; that Officer Mitchell was now in Omaha, Neb., where he had gone to attend the funeral of his brother.

Cross-examination: Witness said he saw appellant searched at the police station, but saw no roll of money taken from him, and could not say that he had such money.

Defendant's evidence: Jake Cramin testified that he was engaged in the burlap sack business at 1801 Biddle street, at Eighteenth and Biddle, on the morning appellan...