State v. Mintz

• Decision Date: 16 May 1905
• Citation: 189 Mo. 268,88 S.W. 12
• Parties: STATE v. MINTZ.
• Court: Missouri Supreme Court

88 S.W. 12

189 Mo. 268.

STATE v. MINTZ.

Supreme Court of Missouri, Division No. 2.

May 16, 1905.

1. CRIMINAL LAW — LARCENY — DEFENSE BEGUN IN ANOTHER STATE.

Where defendant induced R., who had previously been employed by a dray company authorized to receive goods for a consignee of certain shoes, and who was known to the servants of the carrier holding such goods for delivery, to go to the freight depot of the carrier in Illinois after his employment by the dray company had terminated, and procure a load of the shoes from the carrier, and R. obtained such shoes, and delivered them to a person other than the consignee in Missouri, such act constituted larceny, and not false pretenses, and was therefore punishable under Rev. St. 1899, § 2362, providing that every person who shall steal the property of another in any other state and shall bring the same into Missouri may be convicted and punished for larceny as though the property was stolen in Missouri.

2. LARCENY — INDICTMENT.

Rev. St. 1899, § 2362, provides that where goods are stolen in another state, and brought into Missouri, the person guilty of the larceny may be punished therefor in Missouri, and that in any such case the larceny may be charged to have been committed, and every such person may be indicted and punished, in any county into which or through which such stolen property may have been brought. Held, that where goods stolen in Illinois were brought into Missouri it was not essential to the validity of an information therefor that it should charge that the property was stolen in Illinois and brought into Missouri.

3. SAME — EVIDENCE.

Where defendant selected and used R. as a mere instrument by which property was feloniously obtained in Illinois and hauled by R. for defendant into Missouri, and defendant entertained a felonious intent to obtain and convert the property, and directed R. to do such acts as would result in his obtaining the property without informing him of such intent, the fact that R. had no felonious intent in obtaining the property was immaterial to defendant's guilt.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Samuel Mintz was convicted of larceny, and he appeals. Affirmed.

The information in this case was filed in the circuit court of the city of St. Louis by the circuit attorney of St Louis on January 26, 1904, charging the defendant, Samuel Mintz, together with Alexander Zellinger, Jacob Zeidell, and William Wiseman, with stealing 146 cases of shoes from the Cleveland, Cincinnati, Chicago & St. Louis (commonly called the "Big Four") Railroad Company, of the aggregate value of $1,800. The defendant was arrested, and filed a motion to quash the information, which motion was by the court overruled. The defendant was arraigned, pleaded not guilty and was placed upon his trial after a severance was granted, and the state elected to first try defendant.

The information contains two counts, and the offense was thus charged:

"Now comes Joseph W. Folk, circuit attorney within and for the Eighth Judicial Circuit of the state of Missouri, aforesaid, and upon his official oath information makes as follows: That Alexander Zellinger, Jacob Zeidell, Samuel Mintz, and William Wiseman, at the city of St. Louis, aforesaid, on or about the 12th day of September, in the year 1903, did feloniously steal, take, and carry away from the possession of the Cleveland, Cincinnati, Chicago & St. Louis (commonly called the `Big Four') Railroad Company, a corporation, one hundred and forty-six cases and one thousand seven hundred and ninety-nine pairs of shoes contained in said cases, all of the aggregate value of eighteen hundred dollars, and all the goods and personal property of the said Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, with the intent then and there feloniously to deprive the owner of the said goods and personal property of the use thereof, and to convert the same to their own use, without the consent of the owner; against the peace and dignity of the state. And the said Joseph W. Folk, circuit attorney within and of the Eighth Judicial Circuit of the state of Missouri, aforesaid, upon his official oath aforesaid, further information makes as follows: That Alexander Zellinger, Jacob Zeidell, Samuel Mintz, and William Wiseman, at the city of St. Louis, aforesaid, on or about the 12th day of September, in the year 1903, did feloniously and fraudulently buy, receive, have, and take into their possession one hundred and forty-six cases and one thousand seven hundred and ninety-nine pairs of shoes, contained in said cases, all of the aggregated value of eighteen hundred dollars, and all the goods and personal property of the Cleveland, Cincinnati, Chicago & St. Louis (commonly called the `Big Four') Railroad Company, a corporation, which said goods and personal property had then lately before been feloniously stolen, taken, and carried away from the possession of the said Cleveland, Cincinnati, Chicago & St. Louis Railroad Company; they the said Alexander Zellinger, Jacob Zeidell, Samuel Mintz, and William Wiseman, then and there well knowing the said goods and personal property to have been so feloniously stolen, taken, and carried away as aforesaid, with the intent on the part of the said Alexander Zellinger, Jacob Zeidell, Samuel Mintz, and William Wiseman then and there feloniously to deprive the owner of the said goods and personal property of the use thereof and to convert the same to their own use, without the consent of the owner; against the peace and dignity of the state. Jos. W. Folk, Circuit Attorney.

"State of Missouri, City of St. Louis — ss. Being duly sworn upon his oath, says, that the statements contained in the foregoing information are true. William Cassen.

"Sworn to and subscribed before me this 25th day of January, A. D. 1904. Casper J. Wolf, Clerk of the Circuit Court, City of St. Louis, for Criminal Causes."

The evidence developed at the trial of this cause substantially shows the following state of facts:

The freight depot of the Big Four Railroad for the reception and delivery of freight for the city of St. Louis, Mo., is situated in the city of East St. Louis, Ill., and it is the custom of merchants in St. Louis to give the work of hauling goods from this and other railroads to transfer companies which contract to haul freight for the merchants from East St. Louis to St. Louis, crossing the river by bridge or ferry, as the case may be. On or about the 10th or 11th day of September, 1903, there was received among other freight at the Big Four Depot 146 cases of shoes consigned to the Giesecke-D' Oench-Hays Shoe Company, a firm of merchants in the city of St. Louis. It appears that in the course of business of the Big Four Company the freight received for delivery is checked out of the cars on what is called a "blind tally" — that is, the "checker" takes a blank sheet provided, and as the goods come out of the car enters the items on the "blind tally" — and this "blind tally" is turned over to other employés, and by them checked against the waybills to ascertain the correctness of the list of goods. From the waybills are then prepared delivery tickets, giving the name of the consignor and consignee, and the location of the goods in the warehouse of the Big Four Company, so that when the goods are called for the delivery clerk will know the class and character of the goods called for, and their location in the warehouse. A person calling for goods is referred to the delivery clerk, who refers to his delivery tickets, and turns the tickets over to a person known as a "picker." The "picker" directs the party to whom the goods are to be delivered to place his wagon in front of the door nearest to the location, and the goods are by him delivered to the wagon, and the driver signs the delivery ticket, and is given a ticket to be signed by the consignee, which is to be returned to the railroad company when signed by the consignee. The testimony shows that the Mound City Transfer Company had been doing all the hauling for the Giesecke Company for several years, and that fact was well known and so understood at the Big Four Depot. Clarence Rector, who procured the goods, had for about a year or more previous to August 12, 1903, been an employé and driver for the Mound City Transfer Company, and had made almost daily visits to the Big Four Depot in such capacity, and was well known to the delivery clerks as a Mound City employé. On Saturday morning, September 12, 1903, about 7 o'clock, or a little after, Rector drove up to the depot, and there met Robert Morcom, one of the delivery clerks of the Big Four. On that morning there was what was known as a "rush order" in the Big Four Depot for the delivery of a box of brass faucets for the Blanke Company, a concern for which the Mound City Transfer Company also did the hauling, and when Rector appeared Morcom proceeded to make up a load of freight for him to be hauled by the Mound City Transfer Company. Morcom produced the delivery tickets for the Blanke order and for the Giesecke order, and handed them to Cassen, a "picker," and told him to give the goods called for by the tickets. As to the custom of delivery Morcom testified that when a man came in, whether an employé of the Mound City Transfer Company or any other, and asked for a load, he would turn the sheets over to his men, and instruct them how to load the wagon. On this morning, when Rector called for one particular shipment of shoes, he had a rush order from Blanke for one box of brass faucets, and told him he would have to take those goods; then he would deliver him the shoes.

W. O. Life, a witness for the state, testified that on September 12, 1903, he worked for the Big Four Company, and was a partner with Morcom, both delivery clerks at the same window, and that Rector came to the window and said a load of shoes; and that when he told him he could not get the...