State v. McCormack, 43708
| Decision Date | 11 January 1954 |
| Docket Number | No. 2,No. 43708,43708,2 |
| Citation | 263 S.W.2d 344 |
| Parties | STATE v. McCORMACK |
| Court | Missouri Supreme Court |
Mark M. Hennelly, St. Louis, for appellant.
John M. Dalton, Atty. Gen., W. Don Kennedy, Asst. Atty. Gen., for respondent.
Elmer McCormack was prosecuted as an habitual criminal, Section 556.280 RSMo 1949, V.A.M.S., for the offense of grand larceny, in having stolen at the City of St. Louis, on August 9, 1951, certain valuable truck wheels, tires and tubes from E. B. Jones Motor Co., a corporation. The jury found in favor of the accused on the issue of his prior felony convictions (alleged to have been five in number), but found him guilty of the grand larceny charged, and assessed his punishment at two years' imprisonment in the penitentiary, the minimum prescribed by statute for that offense. Section 560.160(2), 546,490 RSMo 1949, V.A.M.S. He appealed from the ensuing judgment and sentence, and filed here a full transcript, but no brief. We look, then, to the motion for a new trial for his assignments of error, and consider such of them as are sufficient under the statute. Section 547.030 RSMo 1949, V.A.M.S., to preserve anything for appellate review. In the latter category is one challenging the sufficiency of the evidence, and it will be examined first.
It was shown by the manager of the truck department of the motor company in question that on August 9, 1951, the company had on its parking lot approximately 15 'brand new' Dodge trucks; that he inspected them about 5:30 that evening (as was his custom) and found all vehicles (including wheels and tires) intact; that he inspected them again the next morning, and discovered one of the 2 1/2 ton trucks jacked up and its two front wheels and the two outer rear dual wheels were missing; also the outside rear dual wheels had been taken from an adjacent 1 1/2 ton truck. Mounted on each wheel was an 8.25 x 20, 10 ply Goodyear tire together with tube, the value of each unit being approximately $125. The removal of this equipment was unknown to the owner, and wholly unauthorized.
Everett Bert Brown, a cab driver and associate of defendant, testifying for the State, swore that at about 1:30 on the morning of August 10, defendant McCormack and one Ray Williams brought two truck wheel-tire-tube units to his (witness') home, got witness out of bed and obtained his permission to leave the articles just mentioned at the rear of the house, which was done. The witness then gave the details of how he made two trips later that night with defendant and Williams to the motor company's parking lot from which defendant told him the two units mentioned had been removed. The lot was dark, and there was no attendant. He stated that on each of such trips to the lot he (witness) drove his own car, a taxicab, and that when defendant and Williams got out at the dark parking lot, he was instructed to allow them 15 or 20 minutes, and then return for them, which he did. On both occasions defendant and Williams emerged from the lot with two additional units which, in turn, were taken to the Brown residence and cached in a shed there. About 9 o'clock the following Monday night defendant, accompanied by a soldier, came by the Brown residence, and informed witness that he had a place to sell the units at Farmington. Defendant complained at that time that one of them was missing. The five remaining ones were then loaded into cars--three in defendant's 1946 convertible Buick, and the other two in Brown's cab, and the trip to Farmington commenced, each owner driving his own vehicle.
Enroute to Farmington, defendant admittedly suffered an accident in which his car left the highway, and turned over several times. It was wrecked; he was injured, and taken to a hospital. The three units he was transporting were retrieved at the scene by a highway patrolman. Brown proceeded on to Farmington and delivered the two units in his car at a residence in that place. A few days later they were taken into possession by the highway patrol. Three of the units thus recovered were delivered through the highway patrol and the St. Louis Police Department to the motor company, and by it reinstalled on the vehicles. The other two units were retained for use as evidence, and introduced at the trial.
Defendant sought to establish an alibi and to show that he was ill at the time, but as accounting for his admitted possession of the tires at the time of the wreck, his testimony was to the effect that he had accepted them from Brown in satisfaction of a $462 debt owed to him by Brown for work as a mechanic in repairing Brown's taxi.
The evidence we have related was clearly sufficient to make the question of defendant's guilt one for the jury, so the contention that the court should have directed a verdict in defendant's favor is without substance.
Complaint is made that the two units introduced in evidence as State's Exhibits '1' and '2' were not properly identified. A further point is attempted to be raised in that same connection, that is, that the court improperly received hearsay evidence in permitting the State to show by testimony of the two highway patrolmen (over defendant's objection) that the serial numbers on the tires when they came into their possession (and as recorded by them, respectively were the same as those appearing on Exhibits '1' and '2'. While the evidence shows that the motor company did not have a record...
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