State v. Moser, 52815

• Decision Date: 12 February 1968
• Docket Number: No. 52815,No. 1,52815,1
• Citation: 423 S.W.2d 804
• Parties: STATE of Missouri, Respondent, v. Robert Lee MOSER, Appellant
• Court: Missouri Supreme Court

Page 804

423 S.W.2d 804

STATE of Missouri, Respondent, v. Robert Lee MOSER, Appellant.

No. 52815.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, William O. Sawyers, Jr., Special Atts. Atty. Gen., St. Joseph, for respondent.

Robert A. McIlrath, Flat River, for appellant.

HIGGINS, Commissioner.

Appellant, charged by information with the felony of stealing property having a value in excess of $50, was convicted by a jury which assessed his punishment at 6-months' imprisonment in the county jail. Sections 560.156 and 560.161, V.A.M.S. Sentence and judgment were rendered accordingly.

Appellant does not complain of the sufficiency of the evidence and a brief statement demonstrates that the state made a case.

Clyde Henry Klob, a policeman of the City of Fredericktown, Madison County, Missouri, was on duty from 11:00 p.m., Saturday, June 11, 1966, to 7:00 a.m., Sunday, June 12, 1966. Sometime after 11:00 p.m. he discovered several rolls of woven wire fencing scattered in the alley behind Thal's Locker Plant. 'I drove around looking to see if I could see anyone and I went out West Main here and I seen a bunch of fellows over in front of Miner's Lumber Company across from the VFW * * * Bob Moser, Tiny Gregory, J. Stephens Larry Cooper, gene Kemp, and two or three others that I did not recognize.' Later, he saw 'an automobile going out of the alley * * * there was some wire in the back end of it.' The car went over a hump and three rolls of wire fell from the trunk of the car. He stopped the car and found the driver to be Bob Moser, the appellant. He was accompanied by Gene Kemp. The car, a s957 Chevrolet, belonged to Larry Gregory. Appellant told Officer Klob he would take the wire back where he got it but, although Officer Klob returned to Thal's Locker Plant, he did not again see appellant. He reported these incidents to N. F. Whitener, Sheriff of Madison County.

Wilbur George Oberman observed the car driven by appellant as it came from the alley behind Thal's Locker Plant loaded with wire. He also saw that car as it was followed by Officer Klob. This occurred between 5:30 and 6:00 on the morning of June 12, 1966.

Sheriff Whitener saw appellant later on June 12, 1966, at Tiny Gregory's house, five miles south of Fredericktown. 'There was some wire laying by Tiny's house and Tiny and Bob Moser and Tiny's wife was standing out to the side of the house. * * * there were six rolls of wire laying there' between Tiny Gregory's 1957 Chevrolet and the house. At the sheriff's direction appellant loaded three 20-rod rolls of 39-inch woven wire into the car and drove into town where he unloaded it at Thal's dock. The sheriff and appellant went from there to the jail.

C.W. Thal had stored wire on the 'alley side' of his premises in Fredericktown for fifteen years. Each roll of 39-inch wire cost $19.75. On June 11, 1966, he had ten or fifteen such rolls of wire on his premises.

Larry Gale (Tiny) Gregory lived about five miles from Fredericktown. On June 11--12, 1966, he had been with Bob Moser, Gene Kemp, and J. Stephens at the VFW where at least he and Bob Moser had had something to drink. They left the VFW when it closed at 1:30 a.m. They left the VFW in Gene Kemp's car and drove around for awhile. Later they loaded four rolls of wire into the Kemp car and Gene Kemp drove it to Tiny's house. Jay Stephens followed them in his car and, while they were all at Tiny's house, Tiny joined Jay and they went to eat breakfast. Before they left, Bob Moser borrowed Tiny's 1957 Chevrolet. When Tiny returned to his home there were more than four rolls of wire on his premises--there were 'approximately ten rolls' of wire.

Gene Kemp told how he, Bob Moser, and Tiny, beginning about 2:00 a.m., took one load of wire 'out to Tiny's in his car and how he and Bob Moser, using Tiny's car, took a second load to Tiny's. They were on their third trip with a load of wire when stopped by Officer Klob.

Robert Lee Moser testified in his own behalf and stated that he and Gene Kemp took one load of four rolls of wire to Tiny Gregory's house in Gene's car. He also admitted taking a second load of four or five rolls, using Tiny's car, and being stopped by Officer Klob while in the process of taking a third load of five rolls of wire.

Both Gene Kemp and Robert Lee Moser denied they were stealing, their theory being that they 'were taking care of this wire until (they) found the rightful owner.'

Appellant contends the court erred in allowing the prosecuting attorney to ask the defendant and Gene Kemp, also charged with stealing this wire, 'questions that had not been gone into in the direct examination or in no way referred to in direct examination.'

The objection at trial to the cross-examination of Gene Kemp was 'It's immaterial; it doesn't prove or disprove anything,' and appellant is not entitled to review on a different theory.

During the cross-examination of the defendant, the prosecuting attorney asked:

'q Mr. Moser, you had seen Officer Klob earlier that evening, had you? A Yes, sir. Q He had mentioned to you and a couple of fellas you were with out here in front of the VFW--

'MR. McILRATH: Wait a minute, don't answer yet. Go ahead.

'MR. GRAHAM: He had told you and a couple of fellas you were with out in front of the VFW that this wire was down there?

'MR. McILRATH: Now, wait a minute. I'm going to object to that; I didn't go into that on direct examination. THE COURT: Overruled.

'MR. GRAHAM: You may answer. A Yes, he came by.

'MR. McILRATH: I want to ask that answer be stricken and the Jury told to disregard it. This is the Defendant....