State v. Pippin

• Decision Date: 08 March 1948
• Docket Number: 40650
• Citation: 209 S.W.2d 132,357 Mo. 456
• Parties: State v. Lafayette J. Pippin, Appellant
• Court: Missouri Supreme Court

209 S.W.2d 132

357 Mo. 456

State v. Lafayette J. Pippin, Appellant

No. 40650

Supreme Court of Missouri

March 8, 1948

Appeal from Audrain Circuit Court; Hon. Frank Hollingsworth, Judge.

Affirmed.

Joseph M. Bone, Jr., for appellant.

J E. Taylor, Attorney General, and Will F. Berry Jr., Assistant Attorney General, for respondent.

(1) The court did not err in overruling Assignment of Error No. 1 in appellant's motion for new trial. State v Robinson, 177 S.W.2d 499. (2) The court did not err in overruling Assignment of Error No. 2 in appellant's motion for new trial. (3) The court did not err in overruling appellant's Assignment of Error No. 3 in his motion for new trial. State v. Evans, 345 Mo. 398, 133 S.W.2d 389. (4) The court did not err in overruling appellant's Assignment of Error No. 4 in his motion for new trial. Sec. 4125, R.S. 1939. (5) The court did not err in overruling appellant's Assignment of Error No. 5 in his motion for new trial. Sec. 4125, R.S. 1939; State v. Londe, 345 Mo. 185, 132 S.W.2d 501. (6) The court did not err in overruling appellant's Assignment of Error No. 6 in his motion for new trial. State v. Leonard, 182 S.W.2d 548. (7) The court did not err in overruling appellant's Assignment of Error No. 7 in his motion for new trial. Sec. 4125, R.S. 1939; State v. Ross, 196 S.W.2d 799. (8) The court did not err in overruling appellant's Assignment of Error No. 8 in his motion for new trial. State v. Kennon, 123 S.W.2d 46.

OPINION

Leedy, P.J.

Lafayette J. Pippin was convicted in the Audrain Circuit Court of larceny of a motor vehicle, a felony under Sec. 8404, R.S. '39 and Mo. R.S.A. (All references to statutes are to R.S. Mo. '39 and the corresponding sections of Mo. R.S.A., unless otherwise expressly noted.) His punishment was fixed at a term of eight years imprisonment in the penitentiary, and he appealed, but he has filed no brief in this court. Review will be limited to such of the assignments of his motion for a new trial as are sufficient to preserve anything for review under Sec. 4125. As thus limited, the principal question is defendant's challenge of the sufficiency of the evidence. His contention is that the state failed to make a prima facie case because: (1) the evidence failed to show (a) any actual or constructive criminal intent of the defendant to steal the automobile, (b) that the defendant asserted or attempted to assert any right, claim or control over said automobile or permanently deprive the owner thereof; and (2) because "the evidence on the part of the defendant proved a reasonable, rational and probable explanation of the defendant's association with . . . Lorna Barr, and his connection, if any, with the . . . automobile . . . and that said explanation was consonant with innocence and was not proven false by the state."

The offense is alleged to have been committed on July 7, 1946, in Audrain County, in which county the prosecuting witness and owner of the car, Mrs. Ethel Barr, resided on a farm near Farber with her husband, her son, Myrle Barr (aged 33), and the latter's wife Lorna May, and also the three children of Lorna May (aged 4, 8 and 10) born of her previous marriage.

The evidence is undisputed that on the Sunday morning in question Lorna May took her mother-in-law's car from the Barr farm without the knowledge or consent of the owner, or of any other adult member of the household. Accompanied by two of her children, she drove it to Vandalia, in the same county, where she was joined by defendant. From his own testimony, as well as from statements made by him and shown by the state, it appears that there was thus begun a trip in the mother-in-law's car which carried defendant, Lona May and her two children to Chicago, thence back to St. Louis and Joplin, Mo., Bartlesville, Okla., Denver, Colo., and finally to Portland, Ore. During this trip defendant and Lorna May lived together as man and wife. Indeed, he introduced her to his mother in Bartlesville as his wife. At Denver he sold the car to a dealer with whom he had become acquainted through his brother. The sale price was $ 390.00, of which $ 175.00 was paid in cash, the balance to be paid on delivery of the certificate of title, a contingency which did not occur. He and Lorna May divided the $ 175.00 thus obtained, and resumed their travels by bus, finally reaching Portland, where they separated.

The background of this unconventional conduct was this: Defendant was a stranger in the Vandalia-Farber community. He was employed as a cook for an extra gang on the railroad, and was temporarily "on location" at Vandalia, having been there only two weeks when, on the night of July 4, 1946, he became acquainted with Myrle and Lorna May at a "dine-and-dance" place known as "Effie's Tavern", located on the highway west of Vandalia. The defendant at that time introduced himself to them as "John Wells", and represented himself as a musician. He accompanied Myrle and Lorna May to the Barr farm and spent the night there, whether by invitation of Lorna May and over the protest of Myrle, as testified by the latter, or by joint invitation of Myrle and Lorna May, as related by defendant, is not entirely clear nor important. In any event, according to defendant's statement made to the officers, after he had retired that night, Lorna May came to his room and got in bed with him. On the next morning she drove him to Vandalia, and it was on this occasion that they "talked about leaving Missouri."

Myrle and Lorna May again went to "Effie's Tavern" on Saturday night, the 6th of July, meeting up with the defendant at that place once more. The following morning Myrle slept late as a result of having taken a sedative, and upon awakening discovered his wife was gone, as was his mother's car. It further appeared that Lorna May did not have the unrestricted right to use the car, being allowed to do so, according to the state's evidence, only after prior arrangements were made with other members of the family.

Myrle testified that on the night of July 6th, although he did not converse with defendant at "Effie's Tavern" his wife did, and he overheard a part of their conversation...