State v. Lipschitz

• Decision Date: 25 May 1928
• Docket Number: 28694
• Citation: 6 S.W.2d 900
• Parties: STATE v. LIPSCHITZ
• Court: Missouri Supreme Court

6 S.W.2d 900

STATE v. LIPSCHITZ

No. 28694

Supreme Court of Missouri, Second Division

May 25, 1928

Bass & Bass, of St. Louis, for appellant.

North T. Gentry, Atty. Gen., and J. D. Purteet, Sp. Asst. Atty Gen., for the State.

OPINION

HENWOOD, C.

Appellant and one Hyman Neustadt were jointly charged with grand larceny by an information filed in the circuit court of the city of St. Louis. Appellant took a severance, and, upon trial, was found guilty, and his punishment assessed at imprisonment in the penitentiary for two years. From the judgment and sentence based on the verdict, he appealed.

The state's evidence shows that Andrew W. Hannigan, prosecuting witness, was employed as a city salesman by Ely & Walker Dry Goods Company of St. Louis. On February 5, 1926, he spent the day attending to certain duties at the store of his employer, and parked his four-door sedan automobile in front of Rosenthal-Sloan's place of business on Washington avenue, near the intersection of 'Seventeenth and Washington.' In the back part of his car he left two sample cases, containing five dress patterns and about 100 pieces of silk. The total value of these goods was 'around $ 225.' Hannigan first parked his car about 8 o'clock in the morning, but used the car in driving to his home for lunch about noon, and again at 5:30 in the evening, in going to 'Eighteenth and Olive' for dinner. After making each trip, he left the car at the place above indicated. Upon entering the car to start to his home, about 9 o'clock in the evening, he discovered that his sample cases were gone. They were still in the car when he drove to his home at noon, but, after that, he had no occasion to look for them until his day's work was over. Between 8 and 9 o'clock on the evening of February 22, 1926, appellant and two other men took 'some samples of silks' to the restaurant of William H. Hargett, 'at 915 North Eighteenth street,' and sold them to Hargett for $ 5. Two days later, February 24, William G. Lay and William V. Walsh, city detectives, went to Hargett's restaurant, and, after some inquiry, Hargett turned over to them 'about seventy-five pieces' of silk and gave them a description of the men from whom he bought the same. On each piece of the silk the detectives marked their initials, 'WGL' and 'WVW,' before taking the same to the police station. Appellant was arrested by Officer Lay on February 28, and on the same day Hargett identified appellant as one of the men who brought the silk to his restaurant, and Hannigan identified the silk as a part of the samples which were taken from his car. Hargett also identified appellant at the trial, and said he had known him for two or three years.

He further testified that, in buying the silk, he transacted the business with appellant, but did not remember whether appellant or one of his companions carried the silk into the restaurant, and that he never had any trouble with appellant, and never knew of appellant having any trouble. Four pieces of silk were exhibited at the trial. Officer Lay identified them by the marks 'WGL' and 'WVW,' and said they were among the pieces of silk recovered at Hargett's restaurant. Hargett identified some of the exhibits as being of the same kind, in colors and other appearances, as the pieces of silk he bought from appellant and the other two men who came to the restaurant with him. Hannigan identified all of the exhibits as his samples of silk, and said they were among the assortment of samples which he left in his car on the day in question. He was able to identify the exhibits by price marks and numbers indicating quality, which he had put on the samples, and which were used by his employer, Ely & Walker Dry Goods Company, as its own exclusive code in marking its goods.

Appellant took the stand in his own behalf, and was the sole witness on his side of the case. He denied that he stole the silks from Hannigan's car, but neither denied nor explained his possession and sale of some of the silks after they had been stolen. He was permitted to further testify that he had never been convicted of any criminal offense, and that he had 'always had a good reputation,' according to his own estimation, but admitted that he did not know what other persons thought or said of him.

I.It is seriously contended that the evidence is not sufficient to sustain this conviction. We do not agree with appellant's learned counsel in this contention. It was shown by direct and positive evidence that Hannigan's samples of silk were stolen from his car February 5th, and that appellant was in possession of some of said samples of silk, and sold them to Hargett on February 22d. Appellant's defense against the charge of stealing the silks rests solely and entirely upon his own denial of the charge. The proof of his...