State v. Meller, 50659

• Decision Date: 12 October 1964
• Docket Number: No. 50659,No. 2,50659,2
• Citation: State v. Meller, 382 S.W.2d 671 (Mo. 1964)
• Parties: STATE of Missouri, Respondent, v. Melvin MELLER, Appellant
• Court: Missouri Supreme Court

Page 671

382 S.W.2d 671

STATE of Missouri, Respondent, v. Melvin MELLER, Appellant.

No. 50659.

Supreme Court of Missouri, Division No. 2.

Oct. 12, 1964.

Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Gary A. Tatlow, Asst. Attys. Gen., Jefferson City, for respondent.

Curtis J. Quimby, Jefferson City, for appellant.

PRITCHARD, Commissioner.

Defendant was on December 5, 1963, convicted by a jury of the crime of stealing, as alleged in the information, a whitefaced steer of the reasonable value of $206.00, the personal property of George Seitz. A prior felony conviction and sentence and imprisonment therefor was also alleged in the information, which was admitted by defendant in person and by his counsel in open court. Thereupon the court made a finding that defendant was a person described in the Habitual Criminal Act, Sec. 556.280, RSMo 1959, V.A.M.S., and that he should be tried accordingly.

After the verdict of the jury was received and on the same day the court made an assessment of defendant's punishment at eight years. On December 12, 1963, defendant under apparent erroneous impression as to the court's procedural action in assessing punishment (which is required by said Habitual Criminal Act) moved to vacate judgment and sentence under Supreme Court Rule 27.26, V.A.M.R., stating the reason therefor his belief that judgment had been entered and sentence passed which barred his right to file a motion for new trial. A motion for new trial was actually timely filed. We shall disregard the motion to vacate judgment and direct our review toward the matters properly preserved in defendant's motion for new trial, and parts of the record specified in Supreme Court Rules 28.02 and 28.08, V.A.M.R., inasmuch as defendant has filed no brief herein.

The evidence relating to the theft charged against defendant is that George Seitz operated a farm in Cole County, near Centertown, Missouri, upon which he was raising cattle and hogs in March, 1963. On March 17, 1963, he had twenty head of whiteface cattle and a calf in his barn. A few days later he checked and a reddish whiteface steer was missing, weighing about 1100 pounds, worth more than $206.00. He did not give anybody permission to take the steer from his farm. The defendant, Melvin Meller, had been on his farm quite a number of times before March, 1963.

The state's case rested upon the testimony of defendant's accomplices, Jim Fenton and Stanley Steinmetz, relating to the instantly charged theft of the one steer. Other acts of theft on other occasions were testified to by these witnesses, the testimony of Fenton being objected to one time by defendant at the trial upon the ground the other thefts were not charged, and had no bearing upon the one theft charged in the information. The alleged error in the court's ruling in admitting the testimony of the other thefts is set forth in defendant's motion for new trial.

Jim Fenton first testified that prior to March 17, in the first part or sometime in February, he and Stanley George Steinmetz had a conversation regarding the theft of livestock with defendant at his house about the 300 block on West McCarty Street in Jefferson City. Defendant then said that if they would steal cattle he would show them how to sell them. Fenton was then permitted to state (over the one objection) that on February 23, 1963, he stole one cow and one calf, and he, Steinmetz and defendant took them to Kansas City, Missouri, and sold them in defendant's name. The check for this sale was mailed to defendant's home, Steinmetz got it and the money was divided. On the night of February 25, 1963, Fenton and Steinmetz stole eight hogs in Callaway County, took them to a St. Louis, Missouri, stockyard, and defendant showed them how to get there and to sell them. Defendant received a part of the money from the sale of the hogs. On March 17, 1963, Fenton and Steinmetz went to the farm of George Seitz and there loaded the steer, the theft of which defendant was charged, into a pickup truck. They later met defendant, and the three of them drove to East St. Louis, Illinois, in two separate trucks, and sold the steer under the name of 'Charles McHenry.' Fenton signed the name of Charles McHenry on the check and gave it to defendant who also signed it and cashed it, purchasing $40 worth of gasoline and giving Fenton and Steinmetz $20 each.

The testimony of Steinmetz concerning the thefts was substantially the same as that of Fenton. We do not set forth other evidence connecting defendant to the commission of the crime charged inasmuch as he does not question the sufficiency of the evidence to sustain the conviction.

Even if defendant's single objection to the testimony of Fenton be treated as continuing and as directed to all of the testimony bearing on other offenses, his assignment of error with...