State v. Martin

• Decision Date: 14 December 1932
• Docket Number: No. 32405.,32405.
• Citation: 56 S.W.2d 137
• Parties: STATE v. MARTIN.
• Court: Missouri Supreme Court

56 S.W.2d 137

STATE v. MARTIN.

No. 32405.

Supreme Court of Missouri, Division No. 2.

December 14, 1932.

Appeal from Circuit Court, Dunklin County; John A. McAnally, Judge.

E. L. Martin was convicted of larceny of an automobile, and he appeals.

Affirmed.

Walker & Billings and Orville Zimmerman, all of Kennett, for appellant.

Stratton Shartel, Atty. Gen. (Otis Patterson, of Springfield, of counsel), for the State.

COOLEY, C.

Defendant Martin and two others, Rex Randles and Estes Morrison, were charged by information in the circuit court of Dunklin county with the larceny of an automobile. Randles and Morrison pleaded guilty, and were sentenced to the penitentiary prior to defendant Martin's trial. Martin pleaded not guilty, and was tried and convicted; his punishment being assessed at two years' imprisonment in the penitentiary. From sentence and judgment upon the verdict he appealed.

The evidence on the part of the state consisted chiefly of the testimony of Randles and Morrison, both of whom were called as witnesses by the state. There were corroborating circumstances testified to by other witnesses. The state's evidence tended to show the following facts:

About noon on December 12, 1930, Mrs. B. H. Davidson, a saleswoman selling bakers' products, parked her automobile in front of a café in Malden, Mo., and entered the café. A few minutes later, and while she was in the café, Martin, Randles, and Morrison, who had previously planned a trip to Flint, Mich., got into the automobile and drove it away. They drove in the car to St. Louis, Mo., where they arrived some time that night. After driving around for several hours in St. Louis, they drove to East St. Louis, Ill. While they were in St. Louis or East St. Louis, Martin expressed a desire to return home, and Randles and Morrison let him out of the car at Dupo, Ill., near East St. Louis, and did not see him again until they were arrested and brought back. They abandoned the car somewhere in Illinois, and made their way to Flint, Mich., where they were apprehended not long thereafter and returned to Dunklin county, Mo. Martin evidently returned at once from Dupo, Ill. He was arrested in Dunklin county a few days after the theft of the automobile.

The defendant, testifying for himself, denied participation in the larceny. He testified that, while he was with Randles and Morrison for a short time in the forenoon of December 12, he was not with them at or about the automobile in question, and did not help steal it or go away in it; that he went from Malden to Dexter, Mo., some miles away, in the evening of December 12, to see a man on business, and remained at Dexter all night. He introduced testimony of other witnesses tending to show his presence at Dexter that night and at a nearby place next morning. His evidence further tended to show that it would have been impossible for him to be at Dexter at the time his evidence placed him there if he had been with Randles and Morrison and had been left by them at Dupo, Ill., at the time they said they left him there. It could serve no useful purpose to set out in detail the evidence on either side. The state's evidence, if believed by the jury, was unquestionably sufficient to sustain the verdict. The credibility of the witnesses was for the determination of the jury.

Defendant has filed no brief in this court. We look to his motion for new trial for the alleged errors of which he complains.

I. Error is charged in that the court overruled defendant's application for continuance at the July, 1931, term of court, at which term the case was tried. The record shows that the information was filed February 3, 1931. The cause was first docketed for February 16, on which date it was continued at defendant's request to March 16. On the latter date it was again continued at defendant's request to March 30. On March 30 it was continued because of defendant's illness. At the next term, on July 20, defendant filed an application for continuance which was overruled. It is the last-mentioned ruling of which defendant complains. The application for continuance is not preserved in the bill of exceptions, nor is there any showing that defendant excepted to the court's ruling thereon. In that state of the record the court's action relative to the application for continuance is not before us for review. The application may have been wholly insufficient, or defendant may not have used due diligence. He saved no exceptions so far as the bill of exceptions shows. The allegations of his motion for new trial as to what his application for continuance contained and that he excepted to the court's action in overruling it do not prove themselves. Those matters should be shown in the bill of exceptions. Moreover, defendant had been granted several postponements. After his last application for continuance was overruled, he answered ready for trial, and apparently went to trial without further objection. No error is shown in this ruling of the court.

II. It is alleged that "the court erred in giving instructions numbered 1, 2, 3, 4, 5, 6 and 7, offered on behalf of the state, over the objections and exceptions of the defendant." Since the 1925 amendment of the statute prescribing the requisites of motions for new trial in criminal cases, we have so often held that a general assignment in such motion, like that above quoted, is insufficient that it is needless to discuss the question or cite the authorities again. However, as to three of said instructions defendant attempts to specify why the court erred in giving them.

(a) Defendant alleges that instructions 1 and 3 were erroneously given because "there is no testimony in the record showing that E. L. Martin, the defendant, had anything to do with the stealing of the automobile, the undisputed testimony of the two boys who stole the car being that no word was said to Martin about it and that the matter of stealing the car was never discussed or referred to in any conversation or in any manner."

Instruction 1 is the principal instruction submitting the case on the theory that, if the jury found that this defendant "either alone or with another or others" stole the car, he should be found guilty. Instruction 3 is on the theory that, if another or others did the stealing, and defendant was present aiding and abetting, he is guilty. The challenge to these instructions goes rather to the submissibility of the case than to the form or correctness of the instructions. The objection is untenable. Randles and Morrison both testified that they and Martin got into the automobile where it was parked near the café and drove it off. They both testified that they and Martin had planned to go to Michigan together and to an unsuccessful attempt Martin had made that morning to get money by telegraph from a brother with which to go by train, and that, after he failed to get that money, "we (Randles, Morrison and Martin) went over and stole the car"; that there was some conversation among them about stealing the car, but witness could not recall which one spoke of it or what was said. All three men had been drinking that morning, and, while Randles and Morrison testified they had not been drunk on that occasion, their memories as to some details of what occurred seemed hazy. But as to the essential facts their testimony was positive. Circumstances which occurred en route from Malden to St. Louis, as testified to by them, indicate active participation by Martin in the theft of the car and in its control and management while on the trip. Whatever may have been said among the three about stealing the car, the evidence clearly indicated concerted action among them. There is no pretense that Martin thought the car belonged to the other two or either of them or that either had any right to take it.

(b) It is claimed that instruction 4 is erroneous because in the last paragraph thereof it assumes that defendant "was an accomplice and had a part in the stealing, without requiring the jury to find such fact." Instruction 4 reads:

"The Court instructs the jury that the testimony of an accomplice in the crime, that is, a person who actually committed or participated in the crime, is admissible. Yet the evidence of an accomplice in crime, when not corroborated by some person or persons not implicated in the crime as to matters material to the issues, matters connecting the defendant with the commission of the crime as charged against him, ought to be received with great caution by the jury, and the jury ought to be fully satisfied of its truth before they should convict the defendant on such testimony.

"The Court further instructs the jury that you are at liberty to convict the defendant, E. L. Martin, on the uncorroborated testimony of an accomplice alone, if you believe the statements as given by such accomplice to be true, if you further believe that the state of facts sworn to by such witness, if any, will establish the guilt of said defendant beyond a reasonable doubt."

We do not consider the criticism of said instruction well founded. The instruction requires the jury to believe the testimony of the accomplice and that it establishes defendant's guilt beyond a reasonable doubt before he can be found guilty on such testimony alone. It was obviously intended as a cautionary instruction dealing with the testimony of the self-confessed accomplices, and is to be read in connection with the other instructions given. We think it could not have been understood by the jury as assuming defendant's guilt. Moreover, if there could be said to be such implied assumption in the last paragraph, it was equally present in the first paragraph, and defendant asked and was given an instruction (B) on that subject in almost the identical language of the first paragraph of instruction 4. Therefore, if there was error in the instruction as contended, which we do not concede, defendant participated in it, and is in no...