State v. Liston

Decision Date20 December 1926
Docket NumberNo. 27511.,27511.
Citation292 S.W. 45
CourtMissouri Supreme Court
PartiesSTATE v. LISTON.

Appeal from Circuit Court, Howard County; W. A. Walker, Judge.

Frank M. Liston was convicted of burglary in the second degree and of grand larceny, and he appeals. Reversed and remanded.

Frank M. Liston, of Kansas City, pro se.

North T. Gentry, Atty. Gen., and A. B. Levan, Asst. Atty. Gen., for the State.

HIGBEE, C.

An information was filed in the circuit court of Howard county on December 22, 1925, charging the defendant with burglary and grand larceny. A trial was had on January 27, 1926, resulting in a verdict finding the defendant guilty of burglary in the second degree and assessing his punishment at imprisonment in the penitentiary for a term of 8 years, and a verdict finding the defendant guilty of grand larceny as charged and assessing his punishment at imprisonment in the penitentiary for a term of four years. A motion for new trial was overruled. The court reduced the punishment for the charge of burglary from eight to five years, and sentenced the defendant on the burglary charge to five years in the penitentiary and to four years in the penitentiary on the charge of grand larceny; the sentences to run concurrently. The defendant appealed.

The evidence for the state is outlined by the Attorney General. With a few changes, it is as follows: The defendant is a negro lawyer; For about a year prior to the trial he had an office in Columbia, Mo., and also maintained a branch office in Kansas City, Mo. The store which was broken into was known as the "New York Style Shop" and was owned and operated by the Famous Style Shop, a corporation. It was located next door to a hardware store in Fayette, Mo. Back of the two stores there was a room which extended across both stores with no partition in it. According to the evidence, a window or transom was broken, and then from the inside the door to the back room was unfastened. On the morning of the 13th of November, 1925, the proprietor of the New York Style Shop found $600 or $800 worth of goods missing. These goods consisted of silk dresses and linen dresses and other goods of that kind. In the back room the proprietor of the hardware store had two sacks of coke. On the morning of the 13th it was found that this coke had been emptied and the sacks were missing. On the 14th of November a deputy sheriff and the city marshal found a trunk full of the stolen goods in Slater, Mo., in the residence of one Bug Smith. The officers found in this house one Romie De Hart, Bug Smith, and several others, all of whom were arrested and placed in jail. A number of other persons were in the house at the time of this arrest, but ran away and escaped. The testimony further shows that this defendant, on the 13th of November, drove into Slater in company with Romie De Hart, who got S. H. Cooper to show them the way to Bug Smith's residence, where De Hart and Bug Smith carried a trunk into the house. The testimony further shows that the defendant went into the house at the time the trunk was taken into it and stayed for a while and then left. He was not in the house when the officers found the goods. The testimony further shows that on the 13th the defendant was seen in Boonville in company with De Hart, and that while there De Hart secured the trunk in which the goods were found by the officers at Slater.

Romie De Hart, a negro, aged 26, testified for the state:

I was born in Howard county and have lived here nearly all my life. I am in jail on a charge of burglary and larceny, in connection with the charge against Liston; have pleaded guilty; . am an ex-convict; have done time in Missouri, Kansas, Iowa, and South Dakota; first time was at Marshall; got four years for larceny; next at Winfield, Kan.; next South Dakota; next at Sioux City, Iowa. I first met the defendant at Sioux City, June 18, 1920; saw him that night, and we got arrested and he got loose and I got stuck. He wrote me a letter, postmarked at Columbia, Mo., while I was in the Iowa penitentiary, and told me he had a job for me; that was in September; I destroyed the letter. I got out of the penitentiary October 7, 1925, and came straight to Kansas City. I went to Slater, Mo., looking for Bug Smith; I have known him all my life. I went to Boonville and stayed three weeks; learned the defendant was in Kansas City. In two or three days met him at Boonville and asked what kind of a job he had. He said he would tell me later on. He said he had to go to the Boonville courts; met him at Nannie King's that night; said he had a murder job for me. He wanted me to get diamonds mostly; nothing said about Fayette at that time. Next night I saw him in his room. He told me to stick around a few days; said he had to go to Kansas City. I saw him again in Boonville a week later; that was in October; said he had a job in Columbia. I went to Columbia and saw him, and the next day we returned to Boonville. I stayed there a week. He went to Kansas City and returned to Boonville. He made another trip to Columbia. We went back to Boonville. Mrs. Williams, Mr. Wright, Miss Buckner, and I were in the car; had no talk about the job; stayed at Nannie King's that night. I distributed bills and the other people that came. He said `nothing about a stick-up job then. Next day we came to Fayette. That was the first time we came together. He told me he had been at Fayette. He said they were coming to Fayette and he wanted me to come along. Next day we came to Fayette; that was the 12th; got there between 4 and 5; we had a blow-out a block from the courthouse. Liston, Wright, and I went to get some patches. It was getting dark. Wright went across the street and got some patches. When he was fixing the car, Liston showed me the place to kick in, the Famous Style Shop. He said it was the first woman's store I came to. He told me to go in the place. I went in between 9 and 10. (Here witness identified the stolen goods.) After I got the stuff, I took it down to Liston's car that night. I did not see him that night. We made an agreement if he had money to get gasoline he would set a lantern in his car, and if the lantern was not burning to hide the stuff till the "next morning. There was no light, and I hid it in the cornfield about a quarter of a mile. Saw Liston next morning about 8 o'clock at Boggs' house; had no watch. He had not got up yet when I went down there. Mrs. Williams, Miss Buckner, Miss Wright, and I were in the house. We all ate breakfast there. Boggs was not there. Liston came out to the car about 9:30 or 10. This stuff was in the cornfield. We left Boggs' place that afternoon at 3 or 4 o'clock. We left in the car. I told him where I would be. He came and stopped his car and I got the sacks. They were just off the roadway. He and I put them in the car. He had not got any gasoline. We went to Boonville to Nannie King's. Liston sent me a box to pack the goods in. I got an old trunk from Lige Taylor and we packed it. He gave Nannie a coat and a dress. Then we tied the trunk and put it in the car. It was then about 10, and we started for Slater about 30 miles off; got there about 1 p. m. We went from Boonville to Marshall. At Slater we went to Bug Smith's because Liston wanted to; said some parties were waiting for him there. Smith and I took the trunk into the kitchen. There were 10 or 15 sitting around there. Liston stayed two or three minutes. There were two Jews in there. Bug Smith and I put the trunk in the middle room. Liston and the Jews went in there about 10 minutes and come out. Liston went out; said he was going to see the Baptist preacher. That is when I was arrested. I made no statement at the preliminary hearing. The next time I saw Liston was about two weeks after that up here at the prosecuting attorney's office. After Liston made his statement accusing me, I pleaded guilty. I did what we agreed to do—stand pat. I stood until he turned. I was arrested on the 14th. The prosecuting attorney didn't promise me nothing. My lawyer advised me to tell the truth. The court employed my lawyer for me. He advised me to get on the stand and tell all about it in my case. I volunteered in this case. I told the prosecuting attorney a couple of days ago I wanted to get on the stand and tell; I guess my lawyer told him. I plead guilty yesterday; have not been sentenced. When Liston made a statement before the prosecuting attorney, that made me mad, and I am getting even with him.

The defendant testified, in substance:

I have lived and practiced law at Columbia, Mo., a little more than a year; have a branch office at Kansas City, Mo. I first met De Hart at Boonville, Mo. I have never been at Sioux City, Iowa. I did not write him a letter last September at Columbia, Mo., addressed to him at the Iowa penitentiary. At that time I did not know he existed. I met him at Boonville about the last of September, 1925, at the colored hotel of Nannie King about 11:30 p. m. I. was driving in a Ford car from Kansas City to Columbia and stopped for lunch. I saw some negroes and inquired if any one cared to make a trip to Columbia. I was ill, and it was cold and raining. I was gassed in the World War and can't see well at night and wanted to have somebody with me. De Hart said he could handle a Ford and would make the trip with me. We reached Columbia in about an hour. He drove. I left him at Boggs' and loaned him a dollar to pay for his lodging. The next day he got in the car and rode with me to Boonville, and I went on to Kansas City. En route to Columbia, he told me his name was Crawford. I supposed he was one of the Boonville boys. I did not write him a letter from Columbia. He did not ask me what job I had for him. I next met De Hart at Boonville about November 11 at Nannie King's. I had no business transactions with him. He went with me to Columbia to drive the car. I went for the officers of the Loyal Legion. I took in my car Miss...

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