State v. McBride

• Decision Date: 23 May 1921
• Docket Number: No. 22656.,22656.
• Parties: STATE v. McBRIDE.
• Court: Missouri Supreme Court

231 S.W. 592

STATE v. McBRIDE.

No. 22656.

Supreme Court of Missouri, Division No. 2.

May 23, 1921.

Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.

John McBride was convicted of grand larceny, and he appeals. Judgment affirmed.

Bellemere Langsdale, of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., and Robert J. Smith, Asst. Atty. Gen., for the State.

WHITE, C.

The appellant was convicted in the criminal court of Jackson county of grand larceny. He was charged with having stolen, August 4, 1919, a Ford automobile of the value of $500, the property of W. C. Eldridge.

The evidence for the state showed that Monday, August 4, 1919, Eldridge owned a Ford automobile, for which he had paid $585 a month before. On that date he parked his car at Electric Park, in Kansas City, about 8:30 p. m. He returned an hour later and found his car gone. He next saw the car on. August 9th, at Lawrence, Kan., where he identified it and took it away. He identified it as his car by a number of articles he had left under the back seat, besides the regular kit of tools that came with the car. He also identified it by appliances he had attached to it; a switch on the dash, a coil leek, wiring for the tail light, a cut-out, and other things. When he recovered the car the city license plate was absent; the motor number on the car had been changed.

The undersheriff at Lawrence, Kan., arrested the defendant with the car. The defendant gave his address as Kansas City, and his name as William Hunter; the jailer booked him by that name. He said he had worked for the Metropolitan Street Railway. He exhibited a bill of sale dated the 6th day of August, 1919, whereby one C. V. Emery sold and assigned the automobile to William Hunter. He said he left Kansas City after the bill of sale was made. The defendant claimed to own the property, but made no attempt to retain it or recover possession after it was taken from him by the sheriff. He attempted an alibi. Some relatives of his wife testified that he was visiting his wife's sister at al farm near Lawrence, Kan., on Sunday and Monday, August 3 and 4, 1919, and remained there until 10:30 at night, Monday, August 4th, which would cover the time at which the automobile disappeared.

Defendant also introduced witnesses to prove they saw him purchase the automobile in Kansas City, August 6th. He denied that he gave his name as William Hunter, but testified that he knew a man by that name; that William Hunter was a motorman on the Roanoke line; that the bill of sale from Emery to Hunter, which was offered in evidence, was in Hunter's possession when the defendant bought from Hunter the automobile in question. Neither Hunter nor Emery was produced at the trial. Defendant explained that on Friday before the Monday on which the car is said to have been stolen he met a man in Kansas City with a Ford car for sale. The man told him he was going to St. Joseph and would return and let him have it for $500 when he came back, if in the meantime he did not sell it. He said he would be back Tuesday, August 5th. Tuesday morning the defendant "arrived in Kansas City and Hunter showed up with the car; he paid Hunter $500 for it and the trade was concluded the next day, the 6th, by the delivery of the car and the bill of sale. The defendant explained that he had the money in his pocket to pay for it, some of which he obtained from his wife and the rest he had carried.

The jury returned a verdict of guilty and assessed the defendant's punishment at three years' imprisonment in the penitentiary. From that judgment he appealed. He has filed no brief, and we have recourse to the motion for new trial to find if any errors have been committed and preserved for review.

I. It is claimed that the indictment is insufficient, in that it is not shown it was returned by a lawfully constituted grand jury, and that it was not signed by the foreman. The indictment has the proper recitals, and charges the offense in the language of the statute defining grand larceny (section 3312, R. S. 1919). It is signed in due form by the prosecuting attorney (section 3885, R. S. 1919), and indorsed "a true bill" by the foreman of the grand jury, in accordance with section 3882, R. S. 1919. State v. Campbell, 210 Mo. loc. cit. 215, 109 S. W. 706, 14 Ann. Cas. 403.

We cannot discover in the indictment any irregularity or failure to state that the grand jury had been regularly impaneled for Jackson county. If there was such irregularity, it was entirely cured by the statute of jeofails (section 3908, R. S. 1919).

II. The defendant while on the witness stand testified that he had served a term in the Missouri state penitentiary at Jefferson City. On cross-examination the state's attorney asked him what he was in the state penitentiary for. This was objected to; objection overruled and exception saved. The witness stated he was in for grand larceny. The state's attorney then asked him what he was in Sing Sing prison in the state of New York for. Defendant denied that he ever was in Sing Sing. To this question the defendant's attorney objected, and, after the arguments of some length which followed, the court overruled the objection and the state's attorney changed the form of his question and asked the defendant if he had served a term of three years in the state prison at Sing Sing, N. Y., for robbery. Defendant answered in the negative. To all this there was objection and exception.

Section 5439, R. S. 1919, provides that any person who has been convicted of a criminal offense is a competent witness, but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination. This section repeatedly has been held to apply to a defendant who takes the stand in his own behalf, notwithstanding the provision of section 4036, which limits the cross-examination of defendant to matters referred to in his examination in chief, but provides that a defendant in such case "may be contradicted and impeached as any other witness in the case." State v. Howe, 228 S. W. loc. cit. 470; State v. Spivey, 191 Mo. loc. cit. 111, 90 S. W. 81; State v. Sovern, 225 Mo. loc. cit. 591, 125 S. W. 760; State v. Corrigan, 262 Mo. 209...