State v. McCarthy, 47731

• Decision Date: 13 June 1960
• Docket Number: No. 1,No. 47731,47731,1
• Citation: 336 S.W.2d 411
• Parties: STATE of Missouri, Respondent, v. Joseph McCARTHY, alias Joe McCarthy, Appellant
• Court: Missouri Supreme Court

Page 411

336 S.W.2d 411

STATE of Missouri, Respondent, v. Joseph McCARTHY, alias Joe McCarthy, Appellant.

No. 47731.

Supreme Court of Missouri, Division No. 1.

June 13, 1960.

Leonard Johnson, St. Joseph, for appellant.

John M. Dalton, Atty. Gen., Richard W. Dahms, Sp. Asst. Atty. Gen., for respondent.

DALTON, Judge.

Defendant was charged and convicted of the offense of stealing certain personal property of a value in excess of $50 in Buchanan County and his punishment was assessed by a jury at two and one-half years in the Department of Corrections of this state. Sections 560.156 and 560.161 RSMo [Laws 1955, p. 507; Laws 1957, p. 374] V.A.M.S. And see 216.208 RSMo [Laws 1957, p. 316] V.A.M.S.; State v. Cox, Mo.Sup., 333 S.W.2d 46, 50.

The State's evidence tended to show that about 10:15 p. m. on the evening of June 4, 1958, two police officers of the City of St. Joseph, while on duty, saw a pick-up truck parked on Cedar Street in that city between Fifth andf Sixth Streets and observed that it had no license plates on it; and there was no name on it to identify its owner. No one was in the cab of the truck and there was nothing in the truck bed. They decided to watch the truck and, later, that evening they observed two men enter the truck and drive away. The officers followed and saw the truck driven across a vacant lot that had been used as a ball park and disappear in the darkness to the east. It went back in the direction of some railroad tracks. The officers could not see the railroad tracks, nor the premises of the General Compressed Steel Corporation from Sixth Street, since there were no street lights back in that area and the truck lights had been turned off. The officers parked some 200 yards away and waited for about twenty-five minutes, until the truck emerged from the darkness and entered Atchison Street and turned west on Atchison to Sixth Street. When the truck stopped at that intersection, the officers observed that the truck was half loaded with scrap metal, motor starters, generators, etc. They asked defendant where he had gotten the metal and he said he had been out in the country 'junking' at some little towns up north and had picked it up. He said he had bought some of the scrap metal up there early that evening and the evening before and had picked it up at different places. A may by the name of Painter was driving the truck and claimed to own it. Both defendant and Painter were arrested and taken to the police station and the truck was parked in front of the station. The next morning defendant told Chief of Police Starmer that he and Mr. Painter had first gone over to the lot where the metal was located and had picked out what junk they wanted and had piled it up. They then went back and loaded it on the truck and it was the junk they had on the truck at the time they were arrested. Defendant said he took the metal from the General Compressed Steel Corporation lot in St. Joseph, Buchanan County. There was other evidence as to the particular kind of scrap metal in the truck. The bed of the truck was about half full so that the pile of metal was about 7 to 7 1/2 feet long by 5 to 5 1/2 feet wide and about 18 inches high. Photographs taken on the morning of June 5, 1958, in front of the police station were in evidence, including one showing the contents of the truck bed.

Defendant did not testify and it does not appear from the transcript that defendant made any admissions in the course of the trial, but the opening statement of defendant's counsel is not set out in the transcript, nor is his argument to the jury shown therein. We assume that some admissions were made, since appellant does not question the first paragraph of Instruction No. 7, as follows:

'The Court instructs the jury that in this case it is admitted by the Defendant that on or about June 5, 1958 in Buchanan County, Missouri that he did wilfully and intentionally steal, take and carry away Scrap Metal, Motors, Generators and a Fan, the same being the property of the General Steel Corporation.'

In any event the contested issue in the trial of the cause was whether the load of scrap metal in the truck at the time defendant was arrested was worth $51.62, as shown by the State's evidence subsequently reviewed, or was worth only $31.21, as shown by defendant's evidence.

At the close of all the evidence defendant moved for a judgment of acquittal on the ground that 'under the proof and the evidence the state has failed to establish a submissible case.' Supreme Court Rule 26.10, V.A.M.R.

Appellant assigns error on the court's action in overruling defendant's motion for judgment of acquittal tendered at the close of all the evidence. The motion for judgment of acquittal was properly ruled, because it was not limited to the charge stated in the information, but was based on the proposition that the State had failed to establish a submissible case. The offense charged in the information included a lesser offense, or rather the same offense with a lesser punishment, if the value of the property was 'less than fifty dollars' (Section 560.161 [Laws 1957, p. 374]) and defendant's own evidence and admissions would have made a submissible case on that issue. Under Section 556.230 RSMo 1949 V.A.M.S., the court or jury trying a case may find the defendant not guilty of the offense charged and find him guilty of any offense, the commission of which is necessarily included in that charged against him. The court subsequently instructed on the question of lesser value, as required under the evidence and Supreme Court Rule 26.02(6). And see State v. King, 365 Mo. 48, 275 S.W.2d 310, 315; State v. Enochs, 339 Mo. 953, 98 S.W.2d 685, 687.

Appellant further contends that the verdict of the jury is not supported by competent and substantial evidence. Appellant says that 'the evidence of the state purporting to establish the market value of the scrap metal described in the information is so contradictory and inconsistent as to amount to a total failure of proof as to such issue'; and that the evidence of the state, if it has any probative force, 'would tend to establish the market value thereof in localities other than St. Joseph, Missouri, where smelting mills were located to which the prosecuting witness shipped such materials.'

The State called Sol Stine as a witness. His testimony tended to show that he had engaged in the business of buying and selling scrap iron and metal since 1931 and had been in St. Joseph with the General Compressed Steel Corporation since 1949 and was its president and general manager. He inspected the property in question at the police station on the morning of June 5, 1958, and recognized various pieces of this property as having been in the yard of his company at 10th and Garfield in St. Joseph. He could tell it was the property of his company by visible inspection, looking at it, and, after examination, he knew the property belonged to his company. The property consisted of 36 assorted electric motors, 19 starters and generators, one fan complete with a 14 inch brass blade, also a heavy drive chain, a plow, two heavy rings 15 inches in diameter and four inches thick, a cultivator wheel and other farm and industrial material classified as 'prepared steel.' The items were segregated and prepared in the yard of his company located across the railroad tracks east of the old ball park. The total weight of all items was 2260 pounds, and its total market value was $51.62. The heavy steel weighed 930 lbs. and its market value f. o. b. St. Joseph, Missouri, on June 5, 1958, was $25.20 per ton, or $11.72. The remaining property, weighing 1330 lbs. and consisting of motors, starters and generators, etc. had a market value of $60 per ton f. o. b. St. Joseph, Missouri, on June 5, 1958, or $39.90.

Louis G. Becker, Assistant Manager of the Missouri Iron and Metal Company, Inc., who had been with that company in St. Joseph since 1950, examined the property in question and fixed its market value in St. Joseph, Missouri, on June 5, 1958, at the same figures given by witness Stine.

Appellant's contentions, as hereinbefore stated, are based upon certain facts developed by detailed and extended cross-examination of witnesses as to customs of the trade and upon certain remarks made by the witnesses during cross-examination. For example, it is apparent that in the junk business, particularly in the collection and acquisition of junk by dealers in the first instance, much depends on the seller. If the seller is willing to sell at an offered price, he has made a sale and the dealer has made a purchase. Market price is not necessarily controlling at that level. Also, mixed items of different metals, when offered to a dealer, often take the price of the cheapest metal in the lot, but after the property is once acquired by a dealer and the different kinds of metal are segregated and prepared according to some fixed standard of classification, the metal, according to its class, has a fixed market value. In this case, if the material had been processed still further and the different kinds of metal in the motors, starters and generators separated further, a higher total price could be obtained on the market. The witness said the electric motors, starters and generators were not classified as 'scrap iron,' but fall in their own category as named.

Appellant also relies on a purchase memorandum marked 'prepared steel' which was made on June 24, 1958, by the General Compressed Steel Corporation showing a purchase of prepared steel at 55cents per hundred--750 lbs. for $4.15, but what the specific property consisted of did not appear and one witness said there were 31 subclasses of 'prepared steel.' Appellant also refers to certain statements to the effect that $51.62 was the lowest price the witness and others in St. Joseph 'would have sold' the property in question for on June 5, 1958, and to certain references by the witnesses...