State v. Perkins

• Decision Date: 21 March 1936
• Docket Number: No. 34153.,34153.
• Citation: 92 S.W.2d 634
• Parties: STATE v. PERKINS.
• Court: Missouri Supreme Court

92 S.W.2d 634

STATE v. PERKINS.

No. 34153.

Supreme Court of Missouri, Division No. 2.

March 21, 1936.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

Roy Perkins was convicted of burglary and larceny, and he appeals.

Affirmed.

E. A. Mason, of Jackson, for appellant.

Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for the State.

ELLISON, Judge.

The appellant was convicted of burglary and larceny in the circuit court of Cape Girardeau county and his punishment assessed at two years' imprisonment in the penitentiary for the burglary and a like term for the larceny. The jury voluntarily inserted in their verdict a condition that the two sentences run concurrently, and the appellant and his attorney in open court waived any and all objections on that ground, make no point on it in the motion for new trial, and judgment and sentence were pronounced accordingly. The specific charge was that he broke into the residence of one Grover Fulbright in said county on April 1, 1934, and stole an automatic pistol of the value of $5. He has filed no brief in this court. His motion for new trial contains ten assignments of error complaining: That the evidence was insufficient to warrant a conviction; of the exclusion of testimony; of the giving and refusal of instructions; and of the manner in which the trial court rebuked his counsel during the cross-examination of a state's witness.

The prosecuting witness, Fulbright, was a rural mail carrier. He lived in Jackson, the county seat of Cape Girardeau county, but had also a small place and dwelling house in Millersville in the same county where he kept some live stock and stayed three or four nights each week. Between times the house was unoccupied. He kept certain personal property therein, including the pistol. The door was padlocked, but the glass panel thereof had been broken out and screen wire was tacked over the opening. The pistol was in the house on the morning of April 1. When Fulbright returned the next morning, it was gone, and the screen wire was torn loose from the door. At the trial, which occurred less than a month afterward, on April 26, he identified the pistol offered in evidence as his, and as being the one stolen from his house.

On and prior to April 1, which was Easter Sunday, the appellant operated a filling station about 400 yards from Fulbright's house. On April 3 he moved to a new location, in Butler county some 18 miles south of Poplar Bluff; and nine days thereafter on April 12 the officers searched his premises under authority of a search warrant. They told the appellant they were looking for a "gun" and asked him about it. Sheriff Kinder, one of these officers, testifying to this incident, said: "He (the appellant) didn't seem to understand what we wanted on the start; he finally said to his wife `if you know where that gun is, get it,' and she reached around the head of the bed and got a gun and handed it to me." It was Fulbright's pistol. On cross-examination the witness was asked this question, "And he told you then at the time that he bought the gun, didn't he?" The court sustained an objection to this question on the ground that it called for an answer which would be purely self-serving. Prosecuting Attorney Peterman, of Bollinger county, was present on the same occasion. He testified that while they were making their search the following occurred: "Mrs. Perkins (the appellant's wife) says, `What are you looking for?' and they told her for Grover Fulbright's gun, and she asked Roy (the appellant) whether she should give it to them and he said `yes,' and she went over to the bed at the side of the room, I think it was under the pillows, and reached in and got the gun and handed it out to the officers."

There was direct testimony from two witnesses implicating the appellant in the burglary and larceny. One of these witnesses was Ernest E. Bentley, alias Thomas Johnson, who admitted on the witness stand that he was serving a four-year sentence in the Missouri penitentiary upon another charge of burglary and larceny, and that he had previously served sentences four times in the penitentiaries of other states. Bently said he had been in partnership with the appellant in running the filling station at Millersville in Cape Girardeau county for about a month before the Easter Sunday when the burglary was committed. On that day they drove to Jackson, the county seat, for the purpose of purchasing or otherwise getting a pistol. In Jackson they met a young man named Robert Jaco with another man. The appellant and Jaco withdrew to one side, but Bentley heard the appellant ask Jaco if he knew where he could get a gun, and Jaco told him he did. The appellant and Jaco walked around a bit and then returned. The appellant said to Jaco, "Well, I'll meet you at 10 o'clock tonight," and Jaco said, "O. K."

The appellant and the witness Bentley then returned to Millersville. On the way, he testified, the appellant said, "We have a gun located, and we will come back tonight and pick Jaco up about 10 o'clock to get the gun." On cross-examination Bentley stated that as he and the appellant started back to Millersville the appellant said he knew "where we could get a gun by breaking in a house."

They did return to Jackson that night. On the outskirts they found Jaco waiting for them. He rode on the back seat of their car, which was a Model A Ford coach with two doors and two seats. As they approached Millersville, Jaco asked if there was a pair of pincers in the car. Bentley produced them and handed them back to Jaco who said he wanted them to pull the screen off. Bentley and the appellant were riding in the front seat. They stopped about 150 feet beyond Fulbright's house. The appellant and Jaco got out and went back toward the house.

In about five minutes they returned together and all three drove back to Jackson. The appellant asked Jaco what he wanted for the gun (which they had taken from Fulbright's house, as will appear from the testimony of the next witness). Jaco answered that he wanted $3 and the appellant started to pay him. Jaco then suggested that the appellant try the gun out as there were two cartridges in it. At a suitable place on the highway the appellant lowered the car window and shot twice with the pistol. Thereupon the witness Bentley and the appellant each produced $1 and offered it to Jaco who accepted that sum and the appellant put the gun in his pocket. After thus taking Jaco back to Jackson, Bentley and the appellant returned to Millersville and the appellant retained possession of the pistol after that. On cross-examination this witness Bentley admitted that the appellant had compelled him to leave his home a short time before the trial because they had had "family trouble"; but the witness insisted he still had a very friendly feeling toward the appellant.

Robert Jaco in general corroborated the testimony of the witness Bentley. He said he did meet Bentley and the appellant in Jackson on Easter Sunday, 1934, and that the appellant asked him where he could get a gun. Jaco told him Fulbright had one at Millersville. Thereupon he and the appellant arranged to meet that night and get the gun — or pistol. The appellant said he would trade the witness a victrola for it, if it suited him. Jaco, Bentley, and the appellant met that night and drove to Millersville. They stopped below Fulbright's house. Jaco asked for a pair of pliers saying he wanted them to pull the screen off the door, and Bentley handed them to him. The appellant and Jaco then went to the Fulbright house and Jaco pulled the screen off the front door, crawled in, and got the pistol which was lying on a box. During this time — it was between 10 and 11 p. m. — the appellant was standing on the doorstep. They went back to the automobile and returned to Jackson. On the way back the appellant put two shells in the gun, stuck it out the window and fired it. The appellant asked the witness, Jaco, what he wanted for the pistol and the latter said $3. Appellant made an offer of $2 and Jaco accepted it and took the money, $1 each from the appellant and Bentley.

It was shown that this witness, Jaco, had pleaded guilty to the burglary and larceny here involved before testifying, and had received a pentitentiary sentence of two years for the burglary and two for the larceny, to run concurrently. On cross-examination he admitted that about a month earlier he had offered to sell the appellant a pistol and that the appellant said he could use it. But he insisted that pistol was a small one of .22 caliber, whereas the pistol stolen from Fulbright was an automatic of .32 caliber. He denied he was indebted to the appellant at that time in the sum of $1.65. He also admitted on cross-examination that at the preliminary hearing he had testified he sold to the appellant the automatic pistol involved in this case; that when they drove from Jackson to Millersville on the night of Easter Sunday to get the pistol out of Fulbright's house the appellant did not get out of the car; and that the appellant did not know he was going to steal the pistol. But he said this testimony he had given at the preliminary was false and that the reason he gave it was that he was confined in jail in the same cell with the appellant at the time and that the latter had a bad reputation for cutting and beating people, and he was afraid of him. He admitted also that since the sentence on his plea of guilty he was out on bond and would like to have a parole, but denied that he had changed his story to placate the officers in the hope of promoting his chances to get a parole.

On the other side of the case the appellant testified that early in March, about a month before the burglary, the witness Jaco owed him $1.65 for sandwiches purchased and offered to sell him a good .32 caliber pistol for $5 allowing credit thereon for the $1.65. The appellant swore his mother and wife...