State v. Morris

• Decision Date: 09 November 1970
• Docket Number: No. 55190,No. 2,55190,2
• Citation: 460 S.W.2d 624
• Parties: STATE of Missouri, Respondent, v. Hubert MORRIS, Appellant
• Court: Missouri Supreme Court

Page 624

460 S.W.2d 624

STATE of Missouri, Respondent, v. Hubert MORRIS, Appellant.

No. 55190.

Supreme Court of Missouri, Division No. 2.

Nov. 9, 1970.

Motion for Rehearing or for Transfer to Court En Banc Denied

Dec. 14, 1970.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

G. Carroll Stribling, Jr., St. Louis, for appellant.

FINCH, Judge.

Defendant, convicted by a jury of operating a motor vehicle without the owner's permission (§ 560.175, V.A.M.S.), was sentenced by the court pursuant to the Second Offender Act (§ 556.280, V.A.M.S.) to imprisonment for five years, and he appeals. We reverse and remand for a hearing and finding to determine the applicability of § 556.280.

The first issue raised involves whether defendant's motion for judgment of acquittal should have been sustained. In determining this question, 'We do not recite all of his testimony because, in testing the sufficiency of the evidence to determine whether defendant's motion for a judgment of acquittal should have been sustained, we consider only the evidence favorable to the verdict. '* * * all the substantial testimony tending to support the verdict must be considered as true, and every legitimate inference therefrom favorable to the verdict must be indulged.' State v. Taylor, Mo., 324 S.W.2d 643, 646, 76 A.L.R.2d 671.' State v. Wishom, Mo., 416 S.W.2d 921, 923. Where, as here, defendant has offered evidence, submissibility of the case will be determined on the entire evidence. State v. Sykes, Mo., 372 S.W.2d 24.

On the morning of June 23, 1969, William E. Roberts parked his 1963 Chevrolet sedan in an alley adjacent to the building where he was employed. During the morning, Roberts' boss, Gary Menkin, asked to borrow the car to run an errand. Roberts gave him the car keys for that purpose, as he occasionally had done on previous occasions. At about 3:30 p.m. Roberts checked on his car and it was there. At 6:00 p.m. Roberts went to where the car was parked for the purpose of bringing a TV set into the shop where it was to be left overnight and discovered that his automobile was missing. Mr. Menkin had not yet returned the car keys to him, but when Roberts checked, Menkin had the car keys in his pocket.

Four days later police officer Oberdieck, at 3:30 a.m., observed a Chevrolet sedan without any state license plate crossing the street in front of him. The car pulled up to the curb a short distance down the street and the police officer then drove up and stopped behind that car. On inquiry, the officer found that defendant, who was in the driver's seat and whom the officer had seen operating the car, had no driver's license. The officer then arrested defendant for failure to have a driver's license and for not having a state license plate. Thereafter, the officer checked the serial number of the car and found that it was the Chevrolet belonging to Roberts. Defendant then was prosecuted for operating that vehicle without the owner's permission. Roberts testified at the trial that he did not know the defendant and had not given him permission to drive his automobile.

Defendant took the stand and claimed that he had not driven the car at all. He said that he and his girl friend were riding with a friend named Leon, that Leon had driven the car to that point, where he stopped and went into a nearby house, and that defendant and his girl friend were awaiting Leon's return when the officer came up.

The first point raised is that a submissible case was not made. This involves, according to the defendant, the question of 'whether the State must prove that the person who is in actual custody of the automobile in question did not authorize its use.' It is defendant's position that Roberts, by permitting his boss that morning to use his car and handing him the keys for that purpose, parted with the care, custody and control of the car and vested them in Mr. Menkin. Since Menkin did not testify, defendant claims that there was no evidence that the car was being operated without the consent of the one who had custody and control thereof. Such testimony, says defendant, was necessary to show that the car was being operated without the consent, express or implied, of the owner.

Defendant cites and relies on the case of State v. Townsend, Mo., 327 S.W.2d 886, as being somewhat analogous to the situation here presented. In Townsend the owner of an automobile, Frank Watson, left town, but before he did so he turned his car over to his nephew, Roland, to use and operate. While Watson was out of town, Roland drove the car to a point where he parked and locked it, and when he returned he found the car was gone. The next day defendant was apprehended driving the car, and he was prosecuted for driving it without the owner's permission. The nephew testified that he had not given permission to the defendant and had not loaned the car to anyone. He also testified that his uncle was not in St. Louis at that time and that he, the nephew, had sole use and possession of the car. In affirming the conviction, this court held that the evidence of the nephew was sufficient to authorize the inference that defendant was operating the vehicle without the consent of the owner and that it was not necessary to call Frank Watson as a witness to so prove.

Defendant reasons that if it was necessary to have the testimony of the nephew in the Townsend case to show that defendant was operating the vehicle without the consent of the owner, then it was necessary in this case to have the testimony of Menkin, to whom Roberts had loaned the car. The evidence does not support the defendant's theory of analogy. In the first place, the evidence does not show that Roberts had vested control and custody of his automobile in Menkin, as the uncle had done in the Townsend case when he left town and completely turned the car over to his nephew. Here, Roberts merely let Menkin use the car to run an errand. Menkin had made the trip and had come back and parked the car at its accustomed place. He failed to hand back the keys and still had them in his pocket, but the owner of the car went out to check on it at 3:30 p.m. and he went back at 6:00 p.m. to get a TV set out of the car and bring it into the shop, and he then planned to leave work in his car. His actions are entirely consistent with his retention of custody and control of his automobile and not with the idea that he had parted with custody and control, as the uncle had done in the Townsend case. Roberts and Menkin worked side by side and kept each other informed when leaving the plant. It is reasonable to infer that the keys, although in Menkin's pocket, were available for Roberts at any time. Furthermore, the evidence completely negatives the idea that Menkin had turned the car over to defendant to drive so that he was driving with the owner's implied consent. The keys to the car were still in Menkin's pocket when absence of the car was discovered. Obviously, he had not turned those keys over to the defendant. Furthermore, defendant made no effort to justify possession on any such theory. Instead, he testified that he was simply a passenger in Leon's car and had not driven it at all. As a matter of fact, he claimed that the car in which he was arrested was not the one which belonged to Mr. Roberts. He made no claim that he knew Menkin or that he had borrowed the car from Menkin or anyone else. In this factual situation, the testimony of Menkin was not a prerequisite to prove that the car was being operated without the owner's consent, and we overrule defendant's first contention that a submissible case was not made.

Defendant's second complaint is that the court permitted the State in cross-examining defendant to ask him about prior convictions for the purpose of affecting his credibility. The questions and answers involved were as follows:

'Q Am I correct when I say--or if I say on June 13, 1961 you were convicted of robbery first degree by means of a dangerous and deadly weapon in two cases and robbery in the first degree on a third case--is that correct?

'A Yes sir.

'Q Am I also correct as a result of that sentence you were--those convictions you were committed to the Department of Correction and arrived in their custody July 10, 1961, and your sentence was commuted on October 1, 1965, is that also correct?

'A Yes sir.'

The issue raised involves § 491.050, V.A.M.S., which provides as follows: 'Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.'

A long line of Missouri cases have applied this statute and have held that pursuant to its provisions, evidence of prior convictions is admissible for purposes of impeachment where a defendant takes the stand to testify in his own behalf. See cases cited under 'Witnesses,' k337(5) in Vol. 29A, West's Missouri Digest.

Defendant does not attack the constitutionality or the validity of § 491.050. Rather, he contends that it is not mandatory under the statute that proof of prior felonies be received and that the admission of such evidence rests in the sound discretion of the trial court. He argues that prior convictions of defendant of robbery with a dangerous and deadly weapon were not logically related to probability of truthfulness or the issue of credibility of the defendant, and that admission of those prior convictions in evidence constituted an abuse of discretion on the part of the trial court.

In Fisher v. Gunn, Mo., 270 S.W.2d 869, 876, this court said: 'It appears to us that the statute, Section 491.050, has arbitrarily accorded to a litigant the right to show a prior conviction for felony or misdemeanor to affect the...