State v. Parker

• Decision Date: 19 February 1930
• Docket Number: 29889
• Parties: The State v. Harry Parker, Appellant
• Court: Missouri Supreme Court

24 S.W.2d 1023

324 Mo. 734

The State v. Harry Parker, Appellant

No. 29889

Supreme Court of Missouri

February 19, 1930

Appeal from Ralls Circuit Court; Hon. Vernon L. Drain Special Judge.

Affirmed.

Roy Hamlin and B. B. Megown for appellant.

(1) A change of venue should have been granted defendant. The trial court was in error, when he refused to permit defendant the right to use oral proof to show that the parties making the supporting affidavits lived in different neighborhoods. When five or more affidavits, duly verified, by parties from five or more different and distinct neighborhoods of the county are filed, then and in that event, a change of venue shall be granted. Said procedure is to eliminate oral proof, which is to save time for the court and expense for the litigant, but it does not nullify the law of oral proof, whereby the defendant can show the prejudice of the inhabitants. State v. Goddard, 146 Mo. 183; State v Hudspeth, 150 Mo. 22; Laws 1921, p. 206. The Act of 1921 does not repeal Sec. 3973, R. S. 1919, but only adds an amendment thereto, and this court has uniformly held that evidence should be heard. State v. Bradford, 314 Mo. 697; State v. Dyer, 139 Mo. 208; State v. Ross, 178 S.W. 477; State v. Swisher, 186 Mo. 119. (2) The indictment did not describe the premises or the ownership of the house in which the offense had been committed. The Kroger Grocery & Baking Company may have several stores in the same town or county. In fact, it is common knowledge that the Kroger Grocery & Baking Company is a chain store organization, having one or more stores in the same town or county. The defendant should be fully advised by the indictment just what he will be compelled to answer, and not be required to go out of or beyond the indictment to learn the exact nature of the charge, he must meet. State v. Murphey, 164 Mo.App. 204; State v. Hammons, 226 Mo. 604; State v. Logan, 209 Mo. 401. (3) The court erred in not sustaining the demurrer of the defense because there was no evidence to sustain the information, but thereafter of its own motion took the charge of burglary away from the jury and submitted the charge of grand larceny. Both were jointly charged: if not guilty of the burglary defendant could not have been guilty of grand larceny. The evidence had already been introduced poisoning the minds of the jury against this defendant. State v. Minor, 193 Mo. 597. (4) In a criminal prosecution, it is the duty of the court to give all necessary instructions whether they are requested or not. Sec. 4025, R. S. 1919; State v. Branstetter, 65 Mo. 149; State v. Banks, 74 Mo. 592; State v. Palmer, 88 Mo. 568.

Stratton Shartel, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.

(1) The indictment is sufficient. Sec. 3297, R. S. 1919, as amended, Laws 1921, p. 196; Secs. 3312, 3305, R. S. 1919. It is not subject to the objection that it does not describe the premises or ownership thereof. State v. Grubbs, 316 Mo. 243, 289 S.W. 852; State v. Tipton, 307 Mo. 500, 271 S.W. 55; State v. Crunkleton, 278 S.W. 982. Appellant was acquitted of charge of burglary; consequently the indictment need not be tested according to the strict rules applicable to that charge. (2) An accessory before the fact is one who is not present, either actively or constructively, at the place of the commission of the crime, but who counsels, procures or commends it. 29 C. J. 1066; State v. Hayes, 262 S.W. 1037; State v. Darling, 216 Mo. 459. He may be charged, tried, convicted and punished in same manner as the principal. Sec. 3687, R. S. 1919. (3) The application for change of venue because of prejudice of the inhabitants was properly overruled. Sec. 3973, Laws 1921, p. 206. There is no affirmative showing that notice of the intended application was given the State as required by said section. State v. Stough, 318 Mo. 1198. The application and supporting affidavits must, in counties of less than 75,000 inhabitants, contain facts (not legal conclusions) of probative value, and the statute contemplates that such facts shall be in lieu of evidence ore tenus. State v. Hancock, 7 S.W.2d 276; State v. Bradford, 314 Mo. 698. The supporting affidavits must show on their face that the makers thereof reside in different neighborhoods. State v. Stough, supra. The application in question being deficient in these respects, did not comply with the statute. (4) There is no reversible error in the prosecutor's opening statement. Statements of matters which are expected to be proven are proper, even though the evidence is not produced, or is excluded. State v. Rasco, 239 Mo. 535; State v. Richmond, 12 S.W.2d 34; State v. Henggeler, 312 Mo. 15. Three objections were made. One was sustained, and the prosecutor limited once and cautioned once. Proper and ample precaution was taken to protect defendant's rights. (5) Defendants charged with the same crime may be separately indicted and tried. When so indicted, the evidence of one is admissible against the other. State v. Braden, 295 S.W. 784; State v. Umble, 115 Mo. 452; State v. Myers, 198 Mo. 225.

White, J. Blair, P. J., concurs; Walker, J., absent.

OPINION

WHITE

The defendant Harry Parker was charged by indictment in the Circuit Court of Ralls County with burglary and larceny. It was alleged that on the night of June 30, 1927, in the County of Ralls he broke into the building of the Kroger Grocery & Baking Company, a corporation, with felonious and burglarious intent, and then and there did steal, take and carry away 2500 pounds of cane sugar of the value of $ 175.

The defendant, June 29, 1927, informed a colored man named Walter White, who operated a little grocery store in Hannibal, that he, Parker, wanted some sugar; the amount was not stated, but White seemed to know it was large. Another negro named Kipper later joined White in a conference with Parker on the subject. There is nothing in the evidence to indicate that those colored men were dealers in sugar. On the contrary, they did not know how nor where to procure it. Parker told them to go to the Kroger Grocery store in New London and they would find it. On the following night Parker repeated his instructions, and one William Holman, appearing for the first time in the venture, drove up in a Ford car. Kipper and White got in with him. They picked up a fourth man named Dan Anderson and drove to New London, where Holman abandoned the enterprise and vanished. The other three men continued to the rear of the Kroger Grocery & Baking Company store and saw through the rear windows the sugar they were instructed to find. They needed a truck, for they must transport their find. Opportunely a garage of the highway department was maintained in New London and in it was a Chevrolet truck, which the adventurers took and drove back to the Kroger store. They backed it up to the rear of the store, and Kipper effected an entrance through a window while the other men kept a lookout. The three then loaded the truck with twenty-five sacks of sugar, each containing one hundred pounds, and drove with it to Hannibal on Highway 61. At a place known as "Toll Gate House," they turned off the highway, drove across some railroad tracks and stopped to wait for Parker. Parker was late in arriving. They tried to locate him by telephone. Some one in a house near grew suspicious and raised an alarm. Two of the men ran away. White courageously remained by his loot. Parker arrived after a while, said that the situation was "all sweet," and led in a roundabout way with one George Ham in the latter's Ford coupe, the truck load of sugar following. The truck became stalled on a hill, the sugar was unloaded, divided, and Parker took charge of it. The state license was removed from the truck, and the three negroes were instructed by Parker to drive it as near to New London as possible and leave it. That was accordingly done. Ham went along and drove the negroes back to Hannibal in his Ford.

The next day the theft of the sugar and the truck was discovered. A search warrant was obtained and the "Owens place" searched. The officers found there all of the sugar with twelve or fifteen sacks open. The State claims that this indicated an attempt to transfer the sugar to other sacks, numbers of which were lying around.

There was evidence that all the participants in this transaction had bad reputations. The case was made out almost entirely on the evidence of White and Anderson, both of whom were under indictment for the offense. The jury found the defendant guilty of grand larceny, and assessed his punishment at imprisonment in the penitentiary for three years. Judgment followed, and he appealed.

I. Appellant assigns error to the action of the court in overruling his application for change of venue.

He filed five affidavits by five different persons, all in almost exactly the same form, stating that the defendant could not have a fair and impartial trial in Ralls County, because of the bias and prejudice in the minds of the inhabitants of that county. No facts were stated and nothing to show that the affiants resided in different parts of the county, as required by Section 3973, Laws 1921, page 206. These affidavits were in effect the same as a joint affidavit, which this court held insufficient in State v. Bradford, 314 Mo. l. c. 698, 699.

On suggestion by the court that the affidavits were insufficient, defendant's counsel asked leave to withdraw them and refile them, and offered oral proof to show that the five affiants lived in five different neighborhoods in the county. The court sustained objection to the oral proof and suggested that the defendant might amend his affidavits so as to cover the necessary features omitted. This the defendant declined to do,...