State v. Miller

• Citation: 221 S.W.2d 724,359 Mo. 327
• Decision Date: 13 June 1949
• Docket Number: 40493
• Parties: State of Missouri, Respondent, v. Charles H. Miller, Appellant
• Court: United States State Supreme Court of Missouri

221 S.W.2d 724

359 Mo. 327

State of Missouri, Respondent, v. Charles H. Miller, Appellant

No. 40493

Supreme Court of Missouri

June 13, 1949

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

SYLLABUS

Defendant was indicted for burglary and larceny, and also under the Habitual Criminal Act, but was found guilty of larceny only. The indictment did not improperly intermingle the charges of burglary and larceny, and the evidence was sufficient to support the larcency conviction. There was no error as to instructions either given or refused. An improper jury argument as to defendant being an ex-convict does not require a reversal under the circumstances of the case.

Ira B. McLaughlin for appellant.

(1) The indictment is insufficient to charge larceny; it fails to state what property was allegedly stolen; it is vague, indefinite and uncertain. The attempt to charge larceny is jumbled and intermingled with the charge of burglary. It is not kept separate from the charge of burglary, and is not concise or complete. State v. Dooly, 64 Mo. 146; State v. Moten, 207 S.W. 768, 276 Mo. 354. (2) The evidence is insufficient to sustain the verdict. As to the larceny attempted to be charged there is a total failure of proof. State v. McMurphy, 25 S.W.2d 79, 324 Mo. 854; State v. Mispagel, 106 S.W. 513, 207 Mo. 557; State v. Shapiro, 115 S.W. 1022, 216 Mo. 359; State v. Ballard, 16 S.W. 525, 104 Mo. 634; State v. Plant, 107 S.W. 1076, 209 Mo. 307; State v. Durbin, 29 S.W.2d 80; State v. Holt, 106 S.W.2d 466. (3) The court erred in giving to the jury Instruction B on the subject of grand larceny. Said instruction assumed the truth of controverted facts and was not confined within the purview of the pleadings. State v. Jones, 268 S.W. 83, 306 Mo. 437; State v. Langley, 154 S.W. 713, 248 Mo. 545; State v. Bonner, 77 S.W. 463, 178 Mo. 424. (4) The court erred in refusing to give to the jury requested Instruction 7, a cautionary instruction relative to the consideration of verbal statements allegedly made by defendant. State v. Henderson, 85 S.W. 576, 186 Mo. 473; State v. Williamson, 123 S.W.2d 42, 343 Mo. 732. (5) The court erred in refusing to give to the jury requested Instruction 11 on the subject of circumstantial evidence. State v. Stewart, 44 S.W.2d 100, 329 Mo. 265; Gulotta v. United States, 113 F.2d 683. (6) The court erred in failing to give a proper instruction on the subjects suggested by Instructions 7 and 11, if it deemed faulty the instructions that defendant requested. State v. Hendrix, 73 S.W. 194, 172 Mo. 654; State v. Gibilterra, 116 S.W.2d 88, 342 Mo. 577; State v. Aitkens, 179 S.W.2d 84, 352 Mo. 746. (7) The assistant prosecuting attorney, in closing argument, transcended the scope of legitimate argument to such an extent as to constitute reversible error. State v. Tiedt, 206 S.W.2d 524; State v. Jackson, 83 S.W.2d 87, 103 A.L.R. 339; Calloway v. Fogel, 213 S.W.2d 405; Casto v. Ry. Exp. Co., 219 S.W.2d 276.

J. E. Taylor, Attorney General, Smith N. Crowe, Jr., and Paul N. Chitwood, Assistant Attorneys General, for respondent.

(1) The indictment is in proper form and is sufficient to charge the crime of grand larceny. State v. Tipton, 307 Mo. 500, 271 S.W. 55; State v. Corey, 69 S.W.2d 297; State v. Crunkleton, 278 S.W. 982; State v. Bloomer, 231 S.W. 568; Sec. 4456, R.S. 1939. (2) The verdict is in proper form and is responsive to the law, the indictment, the evidence and the instructions of the court. Secs. 4456, 4457, R.S. 1939; State v. Barbour, 347 Mo. 1033, 151 S.W.2d 1105. (3) Allocution, judgment and sentence are in proper form and comply with the statutes. Sec. 4456, R.S. 1939. (4) There is sufficient evidence to support a verdict of guilty of grand larceny. State v. Hawkins, 165 S.W.2d 644; State v. Hoskins, 327 Mo. 313, 36 S.W.2d 909; State v. Lyle, 353 Mo. 386, 182 S.W.2d 530; State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701; State v. Pillow, 169 S.W.2d 414; State v. Vaughan, 152 Mo. 73, 53 S.W. 420; State v. Moore, 117 Mo. 395, 22 S.W. 1086; Satte v. Pippin, 209 S.W.2d 132; Ryan v. United States, 99 F.2d 864, certiorari denied, 59 S.Ct. 484, 306 U.S. 635, 83 L.Ed. 1037, rehearing denied, 59 S.Ct. 586, 306 U.S. 668, 83 L.Ed. 1063; State v. Skibiski, 245 Mo. 459, 150 S.W. 1038; State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033; State v. Breeden, 180 S.W.2d 684. (5) The court did not commit error in giving to the jury Instruction B. State v. Shout, 236 Mo. 360, 172 S.W. 607; State v. Cohen, 100 S.W.2d 544; State v. Moore, 80 S.W.2d 128; State v. Barbata, 336 Mo. 362, 80 S.W.2d 865; State v. Smith, 237 S.W. 482; State v. Swearengin, 234 Mo. 549, 137 S.W. 880; State v. Lively, 311 Mo. 414, 279 S.W. 76; State v. Talbert, 354 Mo. 410, 189 S.W.2d 555; State v. Sapp, 356 Mo. 705, 203 S.W.2d 425; State v. Willard, 346 Mo. 773, 142 S.W.2d 1046; State v. Cain, 31 S.W.2d 559; State v. Williams, 248 S.W. 922; State v. Emory, 246 S.W. 950; State v. Weisman, 238 Mo. 547, 141 S.W. 1108; State v. Deuser, 345 Mo. 628, 134 S.W.2d 132; State v. Spidle, 342 Mo. 571, 116 S.W.2d 96; State v. English, 11 S.W.2d 1020; State v. Montgomery, 230 Mo. 660, 132 S.W. 232; State v. Reppley, 278 Mo. 333, 213 S.W. 477; State v. Reinke, 147 S.W.2d 464; State v. Fitzgerald, 174 S.W.2d 211; State v. Decker, 326 Mo. 946, 33 S.W.2d 958; State v. Lippman, 222 S.W. 436. (6) The court did not commit error in giving to the jury Instruction H. State v. Breeden, 180 S.W.2d 684; State v. Conway, 241 Mo. 271, 145 S.W. 441; State v. Connor, 252 S.W. 713; Sec. 448, R.S. 1939. (7) The court did not commit error in refusing to give to the jury Instruction 7. State v. Pope, 338 Mo. 919, 92 S.W.2d 904. (8) The court did not commit error in refusing to give to the jury Instructions 9, 11 and 12. State v. Huff, 353 Mo. 791, 184 S.W.2d 447; State v. Hutsel, 208 S.W.2d 227; State v. Foster, 355 Mo. 577, 197 S.W.2d 313. (9) The court did not err in refusing to give defendant's instruction in the nature of a demurrer offered at the close of the State's case and offered again at the close of the entire case, and that the testimony offered by the State was sufficient to sustain the allegations of the indictment that the defendant entered the storeroom by forcibly bursting and breaking an outer window and door of said store building. State v. Decker, 326 Mo. 946, 33 S.W.2d 958; State v. Davis, 196 S.W.2d 630; State v. Catron, 317 Mo. 894, 296 S.W. 141. (10) The court did not err in permitting the assistant prosecuting attorney to make the alleged improper remarks in his argument to the jury, and did not err in failing to discharge the jury because of said remarks, as complained of by the defendant. State v. Gordon, 253 Mo. 510, 161 S.W. 721; State v. Stark, 72 Mo. 37.

OPINION

Clark, P.J.

On an indictment for burglary and larceny, defendant was convicted of grand larceny and sentenced to a term of two years in the state penitentiary. He appeals and we will discuss his assignments of error in order.

First, as to the sufficiency of the indictment which, omitting formal parts, after charging appellant with previous conviction of a felony, proceeds as follows: ". . . Charles H. Miller, on the 21st day of June, 1945, at the County of Jackson and State of Missouri, did then and there unlawfully, feloniously and burglariously break into and enter a certain building to-wit: the store room of Bergfeldt-Roueche, a corporation, located at Room 205 Dwight Building, 1005 Baltimore Avenue, Kansas City, Jackson County, Missouri, by forcibly bursting and breaking an outer window and door of said store room, there situate, the same being in a building in which divers goods, wares, merchandise, and valuable things were then and there kept for sale and deposited, with felonious intent the said goods, wares, merchandise and valuable things in said building then and there being, then and there unlawfully, feloniously and burglariously to steal, take and carry away; One Hundred (100) bolts of imported woolen cloth of the value of Three Thousand ($ 3,000) Dollars, Sixteen (16) woolen pieces of cloth, cut in the shape of pants legs of the value of One Hundred Sixty ($ 160.00) Dollars, and One (1) Royal Portable Typewriter of the value of Thirty-five ($ 35.00) Dollars, of the aggregate value of Three Thousand One Hundred Ninety-five ($ 3,195.00) Dollars, of the goods and property of Bergfeldt-Roueche, a corporation, in the said building then and there being found, did then and there unlawfully, feloniously and burglariously steal, take and carry away; against the peace and dignity of the state." (T. 3)

Appellant, though conceding that burglary and grand larceny may both be charged in the same count, says the two charges are so intermingled that it is not clear what property appellant is charged with stealing. He cites the cases of State v. Moten, 276 Mo. 354, 207 S.W. 768, and State v. Dooly, 64 Mo. 146. The defects found in the information in the Moten case and the indictment in the Dooly case are not similar to that claimed by appellant in the instant case. The indictment here is substantially like those approved in State v. Tipton, 307 Mo. 500, 271 S.W. 55, and State v. Crunkleton, (Mo.) 278 S.W. 982. Like the forms of many indictments which have been followed through the years with the approval of this and other courts, it could have been written in simpler and more modern style, but it substantially follows the statute and we hold it sufficient to apprise appellant of the offense with which he is charged.

As to the sufficiency of the evidence to sustain the charge of larceny: Appellant was identified by an employee of Bergfeldt-Roueche Corporation as a man who visited the corporation's place of business in Kansas City a few days prior to June 21, 1945, and made some...