State v. Mangiaracina, 48342

• Decision Date: 09 October 1961
• Docket Number: No. 2,No. 48342,48342,2
• Citation: 350 S.W.2d 796
• Parties: STATE of Missouri, Respondent, v. Anthony MANGIARACINA, Alias Tony Mag, Appellant
• Court: Missouri Supreme Court

Page 796

350 S.W.2d 796

STATE of Missouri, Respondent, v. Anthony MANGIARACINA, Alias Tony Mag, Appellant.

No. 48342.

Supreme Court of Missouri, Division No. 2.

Oct. 9, 1961.

Rehearing Denied Nov. 13, 1961.

Roger J. Barbieri, Kansas City, for appellant.

Thomas F. Eagleton, Atty, Gen., Ben Ely, Jr., Asst. Atty. Gen., Jefferson City, Missouri, for respondent.

BARRETT, Commissioner.

Anthony Mangiaracina, also known as Tony Mag, has been found guilty of stealing an automobile and his punishment has been fixed at a fine of $1,000 and one year's imprisonment in the county jail. Sections 560.156, 560.161 RSMo 1959, V.A.M.S. Upon this appeal his principal claim is that he is entitled to a judgment of acquittal for the asserted reason that the state's evidence is insufficient to sustain the charge in that there was no proof that he 'rendered any assistance either before or at the time' in the actual theft of the automobile. In this connection he claims that at most the state's proof is of assistance to the principal thief after the crime of stealing had been completed and, therefore, he should have been tried as an accessory after the fact (Section 556.180 RSMo 1959, V.A.M.S.), not as a principal or as an accessory before the fact. Section 556.170 RSMo 1959, V.A.M.S. If not entitled to a judgment of acquittal, the appellant contends that he is entitled to a new trial in that the court erred in permitting the admitted thief, Allen, to testify to his actions and conversations with the defendant when there was no proof that he was aware of the thief's felonious purpose or intent or if he did know there was no proof that he 'rendered any assistance' to the thief. He also claims that it was error to permit Allen to narrate events and conversations which he says were not in furtherance of a conspiracy and all of which were after the consummation of the theft.

The uncontradicted evidence was that the appellant, Mangiaracina, operated a used car business on Prospect Avenue called T & M Auto Sales. Walter Edward Allen was a mechanic and on a part-time basis was the appellant's employee. On April 30, 1959, Mag and Allen left the used car lot in Mag's automobile and drove out on Main Street hill, Allen got out of the automobile and Mag drove dway. Allen immediately walked over to a parked 1956 four-door Chevrolet sedan, 'put a jumper on the ignition system and started it.' The doors on the Chevrolet were locked and Allen 'broke the glass out' of a front window and drove the automobile directly to the garage on Mag's used car lot. Allen first took the switch out of the Chevrolet and gave it to Mag. He then proceeded to grind off the numbers on the motor and as he was putting another series of numbers on the motor, numbers furnished by Mag, Mag returned with the switch with a key in it. Mag then furnished Allen with a Kansas motor vehicle title to a 1956 Chevrolet bearing the serial number corresponding with the number Allen had placed on the motor. In a day or so Allen, accompanied by a boy who loafed around the used car lot, drove the Chevrolet to Springfield where it was sold at auction, to a purchaser in Pittsburg, Kansas. Finally the Chevrolet was identified by its correct, concealed motor or serial number and recovered by its owner, Davis, who had parked it on the Main Street hill early on the morning of the 29th.

Allen, in testifying to the briefly noted circumstances of the theft, said that he did not remember whether he and the appellant had a conversation as to the purpose of 'your going out that morning.' He said that he 'got out of Tony's car and he (Tony) left' and that he (Allen) 'did that,' that is stole the automobile. When asked whether someone requested him to take it he said, 'Well, I can't answer that either, I don't remember.' When asked whether Tony had said anything to him about stealing an automobile as they rode out to the Main Street hill he again replied, 'I don't remember.' While Allen was a state's witness and unequivocally testified to the indicated facts, he was as evasive as the circumstances permitted. He too was charged with stealing the Chevrolet and his case was pending. In any event, the appellant seizes upon these particular bits of testimony and the fact that he was not present when Allen actually took the automobile and drove it away and says, 'There is no evidence which connects this defendant with the crime in being an actual participant or perpetrator.' He urges that there is no proof that he had 'procured, counseled or commanded' Allen to steal the automobile and since his only proved 'assistance' was after the completed theft it is argued that he could only be an accessory after the fact, not a principal or an accessory before the fact. Thus the appellant undertakes to establish that the case falls within the rule best illustrated by State v. Mathis, Mo.App., 129 S.W.2d 20, in which it was held that a defendant's mere presence in a store plus her refusal to interfere with, or concealing the fact, and her knowledge and approbation that her companion stole a bracelet and a hat would not sustain her conviction of petit larceny.

But even the noted circumstances are subject to other inferences than those the appellant would have drawn. It is true that Mag was not present when Allen attached the 'jumper,' broke the glass, and actually drove the automobile away. There is no direct testimony that he procured or counseled Allen to steal the Chevrolet (Compare: State v. Erlbacher, Mo., 270 S.W. 277) but the force of the circumstances permit the inference of a 'community of unlawful purpose.' 22 C.J.S. Criminal Law Sec. 87, p. 255. The inference is permissible from the circumstances that he drove Allen to the place of the theft and the fact that Allen immediately returned to...