State v. Meeks

• Decision Date: 05 June 1931
• Docket Number: 30246
• Citation: 39 S.W.2d 765,327 Mo. 1209
• Parties: The State v. Alfred Meeks and Dewey Lawter, Appellants
• Court: Missouri Supreme Court

39 S.W.2d 765

327 Mo. 1209

The State v. Alfred Meeks and Dewey Lawter, Appellants

No. 30246

Supreme Court of Missouri

June 5, 1931

Appeal from Daviess Circuit Court; Hon. Ira D. Beals Judge.

Affirmed.

Stratton Shartel, Attorney-General, and Walter E. Sloat, Assistant Attorney-General, for respondent.

(1) In the cross-examination of Bud Owens counsel for the appellant asked questions wherein the witness told part of a conversation had with his wife immediately upon his arrival at home. Upon objection being made the court ordered the conversation stricken from the record (B. of E. pages 32-33). This was not error. State v. Winslow, 11 S.W.2d 1010. An instruction was given by the court telling the jury to disregard such testimony as had been stricken out, and this instruction cured any error which might have arisen in its admission. State v. Merrell, 263 S.W. 120; State v. Laycock, 141 Mo. 279. (2) The court properly permitted Hutchison, constable of Jamesport, to testify that he found several packages of cigarettes in appellant's car. Some of these cigarettes were later identified as coming from the store which had been burglarized. Recent possession of stolen property no longer raises a presumption of guilt in this State, but it is a circumstance to be taken into consideration by the jury in determining whether the person in whose possession it is found had anything to do with the theft. State v Swarens, 294 Mo. 139; State v. Lipschitz, 6 S.W.2d 901; State v. McBride, 12 S.W.2d 49. (3) Subject to the approval of the trial court the weight of the evidence is for the consideration of the jury, and their verdict will not be disturbed except for an abuse of discretion on the part of the court. State v Baumann, 1 S.W.2d 156; State v. Zoller, 1 S.W.2d 142; State v. Pinkard, 300 S.W. 751; State v. Jackson, 283 Mo. 24; State v. Concelia, 250 Mo. 424. (4) Defendant Meeks admitted he had served a term in the penitentiary and it was therefore not error to show him the record made by the authorities at the penitentiary. State v. James, 194 Mo. 279. It is permissible to ask a witness who has formerly been convicted what was the nature of the crime for which he had been convicted. State v. Merrell, 263 S.W. 122; State v. McBride, 231 S.W. 593. (5) The only evidence offered which related to the inability of the appellants to give bond was on cross-examination of witnesses produced by the appellants. These witnesses had offered evidence to the effect that the appellant's reputation had been good since they had returned from the penitentiary. The State had made no attack on appellant's reputation. Therefore, this evidence so far as it concerned their character as a witness was inadmissible. State v. Marshall, 297 S.W. 68; State v. Fogg, 206 Mo. 716; State v. Beckner, 194 Mo. 292. On the other hand several witnesses testified to the reputation of appellants as being "good citizens." This testimony would seem to be admissible to prove the character of appellants, not as witnesses, but as defendants. If this be true then the State's cross-examination of witnesses relative to the failure and inability of the defendants to give bond was unquestionably error; whether fatal or not we leave to the discretion of this court. (6) Instruction 9 has been approved in the same wording and without the use of the word "burglariously" by this court. State v. Tipton, 271 S.W. 55.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Defendants, upon trial in the Circuit Court of Daviess County, were found guilty of burglary in the second degree, as defined by Section 4048, Revised Statutes 1929, and their punishment was assessed separately at imprisonment for six years in the penitentiary. From the judgments and sentences they appeal.

The case made by the State was that Jamesport is a small town in Daviess County. Bud Owens, employed by the Rock Island Railroad Company as a telegraph operator at Jamesport, was on duty at the railroad station on November 15, 1928, from four P. M. until midnight. About 11:30 o'clock that night, he saw parked near the station an automobile which he described as a dark-red touring car, with drawn curtains. It had a trunk behind, and, what he had never seen before, two spare tires. A man stood near the car. The night being cold, Owens invited the man to come into the station and warm himself at the stove. But the man, after talking to another unseen person, declined. Shortly before midnight, however, the man who had been so invited entered the station and stood for awhile beside the stove. Owens at the trial identified this man as defendant Lawter.

When Owens left the station at midnight, the strange car had departed, but on his way home, he saw it again, parked near a garage on the main street. Situated on the main street of Jamesport is the Home Exchange Bank Building, one part of which is occupied by the bank, a second part by the grocery store of J. C. Oxford, and a third part by the Pollock Dry Goods store, of which Owens's wife was manager. In the partition between the grocery store and dry goods store there were double doors which were open by day, but were locked and barred at night. Owens, after reaching home, decided to make further investigation of the automobile, with two spare tires. Accordingly he and W. F. Hutchison, the town constable and night-watch, drove past the strange car, which now was parked nearer the two stores than before, and apparently was not occupied. Owens, fearful for the dry goods store, got the keys from his wife, returned to the store and entered it. The hinges of the partition doors between the two stores had been unfastened. The doors hung loosely upon the bars and there was free passage way from store to store. The front door of Oxford's grocery store had been forced open. After these discoveries, Constable Hutchison looked again for the strange car, but it had gone. He notified the Sheriff of Daviess county, who raised a hue and cry by telephone. In a short time Vincil West, marshal and night-watch at Winston, another town on the highway, arrested the defendants as they were driving through Winston, in the dark-red touring car. Owens identified Lawter and the car. Hutchison also identified the car. Early on the morning of November 16th, the defendants were placed in jail at Gallatin, the county seat, and the car was parked in front of the jail.

Mr. Oxford made a survey of his stock on the night that his store had been entered. He missed a number of packages of cigarettes from a carton which he had opened that day. The automobile was searched and sundry packages of the same brand as those which Mr. Oxford missed were found in places of seeming concealment. Among these packages found was one with a hole in the side. One of Mr. Oxford's customers, toward the close of business on the day of the burglary, had refused to accept a package of these cigarettes because it had a hole in the side. Mr. Oxford took back the package and replaced it in the carton. At the trial Mr. Oxford testified that the package with the hole in it, found in the automobile, looked like the package which his customer had rejected. A leaf of an automobile spring was found in the car of defendants. The end of this spring fitted into pressure marks upon the forced front door of Oxford's store.

Buel Wilds, a young man of Jamesport, while driving his mother and sister home from St. Joseph about one o'clock on the night of the burglary, saw the red touring car standing, as Owens had testified, near the garage on the main street of Jamesport. Mr. Wilds later identified the car in which the defendants were riding when arrested as the car which he had seen standing in Jamesport. The defense sought to prove by this witness that two citizens of Jamesport each had an automobile of the same make, color and model as the car in question. But both of these men testified on rebuttal that their automobiles were in their home garages on the night of the burglary and that their automobiles had only one tire in spare.

The defendants were half brothers and lived at Stanberry in the adjoining county of Gentry. Each had served a term in the penitentiary for grand larceny. Meeks had returned home from prison about two years and Lawter about six months before the burglary of Oxford's store at Jamesport on November 15 1928. The defendants testified that the red touring car in which they were riding when arrested was in need of an armature for the generator. They had sought in vain to buy a second-hand armature in Stanberry, King City, Albany and St. Joseph. Some one in St. Joseph informed them that they might be able to buy an armature in a wrecking yard at Trenton. On the day of the burglary they left their home in Stanberry in Gentry County for Trenton, in Grundy County, eighty miles distant. On the way they crossed Daviess County, which is between Gentry and Grundy, passing through the towns of Maysville, Cameron, Winston, Altamont, Gallatin, Jamesport and thence on to Trenton which they reached about nine o'clock on the evening of the burglary. They did not know the name or the location in Trenton of the wrecking yard. They inquired of a policeman for a man named Cunningham who they thought might tell them where the wrecking yard was. When the policeman could not inform them they made no further search or inquiry. They left Trenton a half hour after midnight and were arrested at Winston on their eighty-mile return journey to Stanberry. On their way to Trenton they did not stop nor park their car when passing through Jamesport on the highway. They denied that they broke into the Oxford store. They denied also that they had hidden the seven or eight packages of cigarettes which later were found in the...