State v. Park
| Decision Date | 02 March 1929 |
| Docket Number | No. 29024.,29024. |
| Citation | 16 S.W.2d 30 |
| Parties | THE STATE v. RALPH PARK, Appellant. |
| Court | Missouri Supreme Court |
J.R. Nicholson and D.C. Chastain for appellant.
(1) The motion to quash the search warrant and suppress the evidence thereunder should have been sustained. Art. 2, secs. 11, 23. Mo. Constitution; Secs. 4115, 4116, R.S. 1919; Laws 1923, p. 244; State v. Barrelli, 296 S.W. 413; State v. Owens, 302 Mo. 348; State v. Lock, 302 Mo. 400; State v. Tunnell, 302 Mo. 433; State v. Rebasti, 267 S.W. 858; State v. Reis, 268 S.W. 391; State v. Stogsdill, 297 S.W. 977. (a) The search warrant did not describe the place to be searched. (b) The search authorized was unreasonable as applied to the property attempted to be described. (c) Neither the application nor the warrant described the property as belonging to or in the possession of the defendant and the warrant only finds that there was probable cause to believe that the liquor laws were being violated; there was no finding that there was reasonable grounds for a search for stolen property, and no positive proof that would authorize a search in the nighttime under Sec. 4117, R.S. 1919. (2) Everything that happened in connection with the search warrant should be suppressed. State v. Pierce, 269 S.W. 406; State v. Randazzo, 300 S.W. 755. (3) It was error to admit the testimony of the witnesses as to the alleged stolen tires and harness which they took on the second search April 9th. State v. Perkins, 285 S.W. 152. The officers after executing the search warrant on April 5th further executed the same search warrant and again searched the defendant's premises on April 9th. The second search was void because the warrant had been fully executed by the first search and first return and because of the delay. State v. Perkins, supra. (4) The testimony of sales of stolen property subsequent to that charged in the information was not admissible. 17 R.C.L. 94; State v. Smith, 250 Mo. 350; State v. Hedgpeth, 311 Mo. 452. (a) Intent is not of essence of the offense of receiving stolen goods. State v. Rich, 245 Mo. 167; State v. Batterson, 274 S.W. 43. (b) Where the character of the crime shows on its face the intent with which it was done evidence of other offenses are inadmissible. State v. Spray, 174 Mo. 74; State v. Hill, 273 Mo. 329; State v. Bersch, 276 Mo. 397. (c) Proof of other charges create a prejudice against a defendant and confuses a jury and generally leads to a conviction. State v. Tunnell, 296 S.W. 427. The evidence that the defendant subsequent to the purchase of the Keeney harness bought other harness from the thief would not be any evidence that he knew the Keeney harness were stolen. These other transactions were at various intervals after the sale of the Keeney harness and Luther says he sold the defendant seven other sets of stolen harness after that time. These subsequent acts, not at all connected with the larceny of the Keeney harness, could not possibly show that the defendant acted with guilty knowledge concerning the Keeney harness. The testimony was highly prejudicial. The defendant was not called upon to meet this class of testimony nor in a position to do so; his defense was that he bought the harness in good faith. There was no proof other than Luther's testimony that these subsequent sets were stolen and the defendant was confronted with the testimony of these subsequent sales without an opportunity to investigate the fact as to whether or not these other harness were in fact stolen. The verdict did not find that the harness stolen belonged to Keeney, but only that the defendant had received stolen property knowing that it was stolen. The court permitted the evidence of ten sets of harness to be admitted, and this incomplete special verdict shows the error of the admission of this testimony. (5) The verdict is a special one, not responsive to all of the essential elements of the charge, and is insufficient. State v. DeWitt, 186 Mo. 61; State v. Pollock, 105 Mo. App. 273; State v. Reeves, 276 Mo. 339; State v. Miller, 255 Mo. 229; Huffman v. State, 89 Ala. 33. The rule is well settled that a special verdict must be responsive to the charge. The verdict here does not find the defendant guilty generally, but finds him guilty of receiving stolen property worth over thirty dollars knowing it was stolen. This verdict does not find, as charged in the information and required by the court's instruction, that harness was stolen, that it was the property of Keeney, mentioned in the information. In view of the fact that the court admitted evidence of other sales to the defendant including sales of two sets of automobile tires which were testified to have been stolen by Luther it was necessary that the verdict expressly find that the defendant received the property with which he stood charged. That is, here are a dozen thefts by Luther and testimony by him of ten sales of harness and a sale of two sets of tires to the defendant, the information was based upon the sale of the Keeney harness and the State's main instruction required that to be found before the defendant could be convicted. State's instruction three submits the issue of much other stolen property, but the verdict does not so find, and under the authorities it is insufficient and will not support the judgment. (6) The court should have given a cautionary instruction as to the weight to be given the testimony of the witness Luther who was an accomplice. State v. Donnelly, 130 Mo. 642; State v. Sprague, 149 Mo. 409; State v. Goforth, 136 Mo. 111; State v. Glazebrook, 242 S.W. 928. The defendant expressly requested the court to give such an instruction. (7) The argument of the prosecuting attorney and the courts ruling and failure to instruct on defendant's motion thereon was highly prejudicial to the defendant and warrants reversal. State v. Bulla, 89 Mo. 595; State v. Spiritus, 191 Mo. 24; State v. Richmond, 186 Mo. 71; State v. Gowdy, 307 Mo. 352. (8) The court erred in requiring the defendant to make his challenges in twenty minutes. The action was arbitrary and oppressive. (9) It was error to receive the testimony of Mrs. Luther that the defendant had sent her some money. (10) The defendant's request of the court that the instruction on credibility of witnesses including the matter of conviction of crime should have been granted. The defendant was entitled to have the jury told in plain words that in determining the credibility of a witness they might take into account the previous conviction of the witnesses of crime. (11) The court's instructions on the subject of burden of proof did not cover every element of the offense charged and was error. State v. Anderson, 86 Mo. 309; State v. Mav, 172 Mo. 630; State v. Baker, 136 Mo. 74; State v. Hardelein, 169 Mo. 579; 16 C.J. 986, 1025. The court is required by Section 4025 to instruct the jury upon all questions of law which are necessary for their information in giving their verdict, which shall include, when necessary, the subject of good character and reasonable doubt, and a failure to so instruct is cause for setting the verdict aside. State v. Broaddus, 315 Mo. 1279. (12) It was error to refuse the defendant's request that sales of other stolen goods were admissible only for the purpose of determining whether the defendant had guilty knowledge of the Keeney harness being stolen. Instruction Number three given by the court was not sufficient, it referred to other transactions without limiting it to receiving goods known to the defendant to have been stolen and was not limited to such deals with the witness Luther but included other parties. What other "transactions" meant or was understood by the jury is a matter of conjecture. (13) The court erred in giving Instruction 1; State v. Constitino, 181 S.W. 1155; State v. Baker, 246 Mo. 357. (a) The instruction does not require the jury to consider the good character of the defendant, the presumption of innocence, the credibility of witnesses and did not require the jury to find the value of the harness beyond a reasonable doubt. (b) It is erroneous in law and confusing in fact because it required a finding that the Keeney harness described in the information was stolen, and that the facts known to the defendant in connection with either buying or receiving it were such as to cause him to know the property was stolen. The information described two sets of harness and the defendant's proof was that he bought two sets of harness at different times, for different prices and on different dates. The first set for which he paid fifty dollars was the one exhibited to the jury while the second set was purchased for $22.50. This information authorized a conviction if the defendant knew the last set of Keeney harness bought by him was stolen he was convicted for buying the first set. (c) The instruction is erroneous because it does not require the jury to find the defendant had actual knowledge or did know that the harness was stolen but only facts such as to cause him to know that the same was stolen. (d) It was erroneous because it assumes that the Keeney harness was stolen. (e) It is erroneous in that it fails to define the offense of larceny and to require a finding that the harness was feloniously taken and that it was the property of Keeney. The instruction did not require that it be found that the harness was the property of Keeney, but only that it was taken from him, and said instruction did not require that it be found that the property was taken within the period of the Statute of Limitations. (14) The giving of instruction number three by the court was erroneous. State v. Norman, 232 S.W. 452; State v. Smith, 37 Mo. 58; State v. Johnson, 234 S.W. 794; State v. Pollock, 105 Mo. 416; State v. Murphy, 292 Mo. 275; State v. Rich, 245 Mo. 162; State v. Meininger, 306 Mo. 675; State v. Powers, 255 Mo. 263; State...
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