State v. Miller
| Citation | 208 S.W.2d 194,357 Mo. 353 |
| Decision Date | 09 February 1948 |
| Docket Number | 40095 |
| Parties | State v. Ellis Miller, Appellant |
| Court | Missouri Supreme Court |
Appeal from Scott Circuit Court; Hon. James C. McDowell Judge.
Affirmed.
Eugene M. Munger and Charles L. Moore for appellant.
J E. Taylor, Attorney General, and C. B. Burns Jr., Assistant Attorney General, for respondent.
(1) The information is sufficient. Secs. 4440, 4448, R.S. 1939; State v. Corey, 69 S.W.2d 297; State v. Grubbs, 289 S.W. 852, 316 Mo. 243; State v. Carey, 311 Mo. 461, 278 S.W. 719; State v. Hurt, 149 S.W.2d 61; State v. Tipton, 271 S.W. 55, 307 Mo. 500. (2) The verdict is responsive to the charge and issues, sufficient in form, fixes the punishment within the statutory limits, and is sufficient. Secs. 4445, 4448, R.S. 1939; State v. Carey, 311 Mo. 461, 271 S.W. 55; State v. Meadows, 331 Mo. 533, 55 S.W.2d 959; State v. Wall, 180 S.W.2d 677. (3) The record in this cause discloses that appellant waived formal arraignment, was granted allocution after verdict, and was sentenced in accordance with the verdict of the jury. (4) The court did not err in overruling appellant's Assignment of Error No. 1 in his motion for new trial. State v. Carden, 183 S.E. 898, 209 N.C. 404, certiorari denied 298 U.S. 682, 56 S.Ct. 960, 80 L.Ed. 1402. (5) The court did not err in overruling appellant's Assignment of Error No. 2 in his motion for new trial. State v. Thompson, 289 S.W. 648. (6) The court did not err in overruling appellant's Assignment of Error No. 3 in his motion for new trial. State v. Nasello, 325 Mo. 442, 30 S.W.2d 132. (7) The court did not err in overruling appellant's Assignments of Error Nos. 4, 8, 10 and 11 in his motion for new trial. State v. Leonard, 182 S.W.2d 548; State v. Schroetter, 317 Mo. 408, 297 S.W. 368; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878; State v. Buckner, 325 Mo. 229, 72 S.W.2d 73. (8) The court did not err in overruling appellant's Assignments of Error Nos. 5 and 6 in his motion for new trial. State v. Shawley, 334 Mo. 352, 67 S.W.2d 74. (9) The court did not err in overruling appellant's Assignment of Error No. 7 in his motion for new trial. State v. Fenley, 309 Mo. 520, 275 S.W. 36. (10) The court did not err in overruling appellant's Assignments of Error Nos. 9 and 23 in his motion for new trial. State v. Morefield, 342 Mo. 1059, 119 S.W.2d 315. (11) The court did not err in overruling appellant's Assignment of Error No. 12 in his motion for new trial. State v. Pease, 133 S.W.2d 409. (12) The court did not err in overruling appellant's Assignments of Error Nos. 13 and 14 in his motion for new trial. State v. Wilhite, 159 S.W.2d 768; State v. Pierson, 343 Mo. 841, 123 S.W.2d 149; State v. Schnelt, 341 Mo. 241, 108 S.W.2d 377; State v. Crown, 87 S.W.2d 427; State v. Short, 337 Mo. 1061, 87 S.W.2d 1031. (13) The court did not err in refusing to give Instruction No. 3, asked by the defendant (Assignment of Error No. 15 in appellant's motion for new trial.) State v. Cook, 44 S.W.2d 90; State v. peterson, 130 S.W.2d 505; State v. Dooms, 280 Mo. 84, 217 S.W. 43. (14) The court did not err in overruling appellant's Assignment of Error No. 16 in his motion for new trial. State v. Broyles, 317 Mo. 276, 295 S.W. 554; State v. Simon, 317 Mo. 336, 295 S.W. 1076. (15) The court did not err in overruling appellant's Assignments of Error Nos. 17, 18 and 21 in his motion for new trial. State v. Barton, 214 Mo. 316, 113 S.W. 111; State v. Mangercino, 325 Mo. 794, 30 S.W.2d 763. (16) The court did not err in overruling appellant's Assignments of Error Nos. 19 and 22 in his motion for new trial. State v. Bobbitt, 215 Mo. 10, 114 S.W. 511. (17) The court did not err in overruling appellant's Assignment of Error No. 20 in his motion for new trial. State v. Tipton, 307 Mo. 500, 271 S.W. 55.
The appellant was convicted in the circuit court of Scott County, on change of venue from Cape Girardeau County, in May, 1946, of burglary in the second degree and larceny of 185 cases of whiskey from a warehouse in violation of Sec. 4448, [1] and his punishment was assessed by the jury at seven years imprisonment in the peniteniary for the burglary, under Sec. 4445, and three years for the larceny, under Sec. 4448. Under Sec. 4151 his appeal should have been perfected in December, 1946, and the cause was actually set for hearing in this court at the September Session, 1947. But owing to defects in the bill of exceptions it was continued on his motion to the present January Session, 1948.
He has filed no brief. Under Sec. 4150 it is our duty to examine for error the record proper, and also the bill of exceptions insofar as errors thereon were properly assigned under Sec. 4125 in appellant's motion for new trial below. The 23 assignments therein severally complain of: (1) the trial court's refusal to require special counsel for the State to disclose whom he represented as attorney; (2) errors in the admission and exclusion of testimony, including physical exhibits; (3) and errors in the giving and refusal of instructions.
The State's evidence consisted of the direct testimony of one witness, Herbert Blake, and of considerable circumstantial evidence. The undisputed facts are that the whiskey, of the value of $ 8340.16, was stolen from the main warehouse of the Moon Distributing Company in Cape Girardeau, which was equipped with burglar alarms, on the night of December 28, 1945. Entrance was effected by prying open the door of an annexed warehouse not so protected, and cutting a hole through the partition wall between the two rooms. Tile and mortar debris was found on the floor underneath the hole, together with a pocket knife. Of the stolen whiskey, 173 1/2 cases were recovered by the sheriff a few days later in the vicinity of an untenanted farm belonging to Clyde Bohne near Hillsboro some 30 miles south of St. Louis and 100 miles or more north of Cape Girardeau.
Bohne, the farm owner, was proprietor of a gasoline filling station in St. Louis. The State's witness Blake worked there. The truck in which the whiskey was found belonged to William J. Castle, who lived near the filling station. The appellant Miller lived across the street from it. Blake was charged as accomplice in the burglary and larceny by separate information, and had pleaded guilty to the charge but his punishment had not been assessed when he testified.
His testimony was that several months before the burglary the appellant suggested perpetrating it; said he had looked the place over; and that the job could be done despite the burglar alarms. He invited the witness Blake to join him in the project for a third interest, appellant to furnish a third man and a truck. Blake accepted, and appellant got the other man, Bert Wells. They started from St. Louis on the night of December 28, 1945, in the truck, Wells driving appellant's automobile, which contained burglar's tools. The burglary was effected as above described, the whiskey transported in the truck to bohne's farm and stored early the following morning in a room of the vacant dwelling house thereon, and covered with a carpet or rugs.
Diverging a minute from the testimony of the accomplice Blake. A neighbor named Hughes had been looking after the farm for Bohne. He and his wife discovered that men were going to the house, and that something was stored there. Within a few days Hughes' automobile was stolen. He complained to the sheriff, who went to the farm, and found Castle's automobile truck loaded with the whiskey stalled on a side road nearby, and a tow truck from St. Louis was attempting to pull it out. Other evidence showed the appellant and his accomplices in the meantime had become alarmed, and were attempting to move the whiskey out, though none of them were with the truck when the sheriff captured it. However, the sheriff went back to the Bohne farm, met the appellant driving out in his automobile, and arrested him. The State Highway Patrol was notified and an investigation followed immediately.
That evening St. Louis police arrested Blake and Bohne. They and appellant Miller were taken to the headquarters of the State Highway Patrol at Kirkwood. Witness Blake said two of the troopers took him to a coal bin in the basement and "gave me to understand that if I didn't tell them about it they would hit me, beat me." One of the troopers, "told me I had thirty seconds to start telling what I knew about it." Blake said he told them he would not sign any papers without seeing an attorney, but he did tell them about the burglary and larceny. He believed the troopers would beat him if he did not tell them, but his main thought was that someone had told them the facts; that the troopers would get the information anyway; and that he would better get it over with. He insisted his story was true, and said when he entered his plea of guilty the trial judge urged him to get an attorney, but that he declined to do so.
This testimony of Blake was corroborated by the following evidence. The other accomplice, Bert Wells, testified he and the appellant Miller did burglarize the Moon Distributing Company on the night in question. This was on rebuttal, and he did not mention or include Blake as one of the burglars. Bohne, the owner of the farm where the whiskey was stored, said the appellant Miller told him it was stolen whiskey. Also, at Miller's request Bohne went from St. Louis to his farm near Hillsboro and told the neighbor Hughes, who had been looking after the place, that from then on Miller was going to take care of it. This was because Miller knew Hughes had been on the farm after the whiskey was stored there, and was afraid he "might cause some trouble."
Allen Grimes, warehouse foreman for the Moon Distributing Company and James F. Beal, an...
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