State v. Lyle

• Decision Date: 22 December 1922
• Docket Number: No. 23776.,23776.
• Citation: 296 Mo. 427,246 S.W. 883
• Parties: STATE v. LYLE.
• Court: Missouri Supreme Court

246 S.W. 883

296 Mo. 427

STATE v. LYLE.

No. 23776.

Supreme Court of Missouri, Division No. 2.

December 22, 1922.

Appeal from Circuit Court, Audrain County.; Ernest S. Gantt, Judge.

Ollie Lyle was convicted of grand larceny, and he appeals. Reversed and remanded for new trial.

Clarence A. Barnes, of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and R. W. Otto, Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

On May 2, 1921, the prosecuting attorney of Audrain county, Ho., filed in the circuit court of said county an information, charging defendants, Aubrey Bybee and Ollie Lyle, with grand larceny. Thereafter on June 18, 1921, an amended information was filed, in which said defendants were charged with grand larceny in stealing an eight-cylinder Oldsmobile roadster automobile, of the value of $1,300, in said county, on February 21, 1921. Upon the request of defendant Lyle, a severance was granted. He thereupon filed a motion to quash said amended information, which was overruled. He was then tried before a jury on June 28, 1921, and the following verdict was returned:

"We, the jury, find the defendant guilty of grand larceny as charged in the amended information, and we assess his punishment at imprisonment in the state penitentiary for a term of two years. W. A. Wayne, Foreman."

Defendant's motions for a new trial and in arrest of judgment having been overruled, he was sentenced, and judgment rendered in due form, in accordance with the terms of said verdict. From said judgment, an appeal was granted appellant to this court.

State's Evidence.

Mrs. Fred W. Llewellyn testified, in substance, that she was the wife of Fred W. Llewellyn, and lived at 627 Woodlawn, in the city of Mexico; that on February 21, 1921, her husband was the owner of an Oldsmobile roadster automobile; that on the above evening she drove said car to the Baptist church, where services were being conducted, and parked the same in front of said church; that about 5 or 10 minutes after 9 p. m. she came out of the church, and found her car was gone; that she reported said fact to Messrs. Johnson and Wallace, who were policemen in said city.

Fred W. Llewellyn testified that he was the owner of said automobile, and that the value of same was about $1,600; that he telephoned to the towns around as to the loss of said machine, got into a taxi, and went to hunt hit car; that he else advertised the loss of the car in the Post Dispatch and Globe Democrat; that he finally found his car in the ditch—through information furnished by Wesley Wells, of Bowling Green, Mo.—about 3 miles southeast of Bowling Green, in a small, narrow lane; that it had been backed into the ditch, and was in mud up to the axles; that it had to be dug out of the mud; that when his wife drove said car to the Baptist church it had thereon a 1920 license plate; that when he found the car in the ditch it had thereon a 1921 license plate; that the blocks of said car were burned out; that he took the car to Bowling Green, had it fixed, and brought it home; that when he found the car in the ditch, it had therein a piece of canvas, a Spanner wrench, a screwdriver, a pair of pliers, and a five-gallon tin can; that none of the above items of personal property were in the car when his wife drove it to the church; that the can was empty; that none of the above items belonged to him; that he wrote to the Secretary of State, and received a telegram from him, which was excluded as evidence by the court.

Lee Pearson testified, in substance; that he lived at Vandalia, Mo., and was the owner of a motor truck on February 21, 1921; that he had on said truck at that time a 1921 license plate; that the number of the license was 128361; that it was a 1921 Missouri tag; that it was gone from said truck on Tuesday morning, February 22d; that his car, on the night of February 21st, was in front of his house in Vandalia, Mo.; that his house was about six blocks south of the Vandalia-Mexico road, as it went into Vandalia; that Mr. Llewellyn sent him his 1921 license plate taken from his truck; that he received his license plate 8 or 10 days after it had been removed; that Mexico is about 30 miles from Vandalia, and that it is about 18 miles from Vandalia to Bowling Green, by the wagon road.

Sam Wallace, the city marshal of Mexico. Mo., testified that appellant was brought to the city jail about 9 o'clock in the morning, in April; that he talked with defendant, and the following occurred:

"Q. Just detail to the jury the conversation that you had? A. Mr. Ford brought him up there, and he took him upstairs. He says, `What have you all got me for?' I says, `What do you know about that Llewellyn car?' He says, `I don't know anything about it.' `Well,' I says, `there is a boy down here talks different; I will go down and get him' and I went down and got Bybee up, and when I brought Bybee in, he says `Oh, hell,' he says, `you have got the goods on us.'"

On cross-examination, witness said defendant told him a day or two after the above conversation that he took the car for a joy ride.

J. G. Ford, the former sheriff of Audrain county, Mo., testified that he arrested defendant Lyle in the spring of 1921, brought him to the city jail, and there had a conversation with him, which was substantially the same as that testified to by Sam Wallace. Mr. Ford further testified that Bybee, in the presence of defendant at the jail, said to appellant, "You know we got the car;" that defendant then said, "Oh, hell, you have got the dope on us now;" that afterwards defendant told him they got the car in front of the Baptist church, and left it southeast of Bowling Green in a mudhole; that defendant told him they got the 1921 license plate in Vandalia; that a few days after defendant was put in jail, he said they went on a joy ride with the car. This was said after his father had been up to see him.

Wesley Wells testified that he found the car in controversy southeast of Bowling Green 2 or 2½ miles, on February 23d or 24th, and it then had on it a 1921 license plate; that the car was crossways of the road, with the axles in the mud; that it is about 52 miles from Bowling Green to Mexico, Mo.; that Bowling Green is in Pike county, Mo.

Appellant's Evidence.

Defendant Ollie Lyle, testified in his own behalf that he was 17 years old, and that he drove the car of Fred W. Llewellyn from the front of the Baptist church. He was then asked by his counsel to state what his intention was. At the instance of the state the answer to said question was excluded. Defendant's demurrer to the evidence at the conclusion of the whole case was overruled.

The instructions given and refused, as well as the rulings of the court, will be considered later.

Opinion.

1. Appellant contends that error was committed by the trial court in permitting the state to show by Lee Pearson, a citizen of Vandalia, Mo., that on the night of February 21, 1921, his 1921 state license plate on his motor truck, standing in front of his house, was removed, and that the same was found on the Llewellyn car, near Bowling Green, Pike county, Mo., a few days thereafter and returned to him by Fred Llewellyn. This testimony was not offered by the state for the purpose of showing that another and independent crime had been committed, but it was manifestly offered for the purpose of showing defendant's connection with the crime here charged against him. Appellant testified that he drove the car of Fred W. Llewellyn from the front of the Baptist church. It is undisputed that the car when taken had on it the 1920 Missouri license plate. When found, a few days thereafter, near Bowling Green, the 1920 license plate was gone, and the 1921 license plate of Lee Pearson was on the car. After defendant was placed in jail, he told Sheriff Ford that they got the car in front of the Baptist church and drove it into the mudhole near Bowling Green in Pike county, Mo.; that they got the 1921 license plate in Vandalia. No one else was shown to have been in possession of said car from the time it was taken by defendant until it was found fastened in the mud near Bowling Green by its owner. The foregoing facts present a strong case against appellant, tending to show that he took the car in controversy without the owner's consent; that he removed the owner's 1920 state license plate, and placed on said car the 1921 state license plate, which he got at Vandalia, in order to destroy the identity of said car and cover up his crime. The trial court committed no error in the admission of above testimony. State v. Miller (Mo. Sup.) 237 S. W. loc. cit. 500, 501.

2. It is claimed that:

"The court erred in not permitting the defendant to testify with what intention he drove the Llewellyn car from in front of the Baptist church. The defendant was entitled to testify as to his intent."

It is conceded by counsel for the state that the trial court erred in refusing to permit appellant to testify as to his intention in taking said car. The above assignment of error is sustained by the former rulings of this court. Vansickle v. Brown, 68 Mo. loc. cit. 634; State v. Banks, 73 Mo. 592; Nichols v. Winfrey, 79 Mo. loc. cit. 546; State v. Palmer, 88 Mo. loc. cit. 573; State v. Williams, 95 Mo. loc. cit. 249, 250, 8 S. W. 217, 6 Am. St. Rep. 46; State v. Tatman, 264 Mo. loc. cit. 372, 175 S. W. loc. cit. 72; State v. Fletcher (Mo. Sup.) 190 S. W. loc. cit. 321; State v. Frederici (Mo. App.) 184 S. W. loc. cit. 173; Smith et aL v. Bailey, 200 Mo. App. loc. cit. 638, 209 S. W. loc. cit. 950.

3. Counsel for appellant challenges the correctness of instruction numbered 1, given by the court, which reads as follows:

"The court instructs the jury that the information filed in this case jointly charged the defendant, Ollie Lyle, and Aubrey Bybee with the crime of grand larceny. Defendant, Ollie Lyle, is now alone on trial. He pleads not guilty, and it is upon the question of Ollie Lyle...