State v. Powers
| Decision Date | 09 June 1969 |
| Docket Number | No. 2,No. 53715,53715,2 |
| Citation | 442 S.W.2d 4 |
| Parties | STATE of Missouri, Respondent, v. J. C. POWERS, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Arthur L. Poger, Special Asst. Atty. Gen., Clayton, for respondent.
Louis Kranitz, Theodore M. Kranitz, Rachel Swoboda Fitzsimmons, St. Joseph, for appellant.
BARRETT, Commissioner.
Charged with burglary and larceny the appellant, C. J. Powers, has been found guilty of 'stealing property worth the value of more than $50.00,' and his punishment fixed at two years' imprisonment.
Only such facts as are necessary to a disposition of this appeal need be noted. Mamie Jane Reynolds lived alone at 1714 Penn Street, St. Joseph. Before going to the hospital on February 7, 1967, she nailed up the back door and securely locked the front door with a padlock. A day or two later her son discovered that the back door had been 'pulled off' and 'throwed over in the corner' and the front door hasp and padlock had been pried open. The son did not notice whether anything wss missing from the house and he did not report the burglary to his mother or to the police. When Mamie came home 'about twelve (12) days' later she discovered that her Singer sewing machine for which she was obligated to pay $150.00 and two electric fans were missing. A few days later Mamie purchased a Singer sewing machine from Cook's secondhand store for $35.00 only to discover that it was her stolen machine. Cook had purchased the sewing machine and fans on February 10th from his part-time employee, J. C. Powers, for $18.00 and he so noted in his report to the city police. Cook positively identified the machine he purchased from Powers as the machine he sold Mamie.
Powers admitted selling the fans and sewing machine to Cook but he claims that on Friday, February 10, 1967, '(a)round 2:30 or a quarter to 3:00' he 'met this colored guy, he was in a pickup,' he gave the name of Fred Simpson and said he was going to Omaha. And Powers testified, Albert corroborated J. C's testimony in detail, adding that he was present when the fans and machine were bought as well as sold. He even described the vehicle as a pickup truck. J. C. said that they tried to contact Simpson but 'The last time he was in Omaha and we had no luck in bringing him back.' Incidentally, one of the arresting officers said that when he accosted the appellant with reference to his connection with the fans and the sewing machine he replied "Yes, I sold those.' We asked him where he got them and he said he bought them.' He told the officer that 'I bought them from a colored gentleman who was sitting in his car at 6th and Charles Streets.' And the officer said that he gave a 'vague description' of the seller.
In these circumstances and particularly upon this testimony the appellant contends that the court prejudicially erred in failing to instruct the jury 'upon all questions of law arising in the case' and that 'a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial.' Criminal Rule 26.02(6); RSMo 1959, § 546.070, V.A.M.S. As indicated, the appellant was found guilty under the facts hypotehesized in Instruction 6a--' stealing property of the value of more than Fifty Dollars.' There were the usual formal, cautionary instructions as well as an instruction on circumstantial evidence and another on the presumption of innocence. There was, however, no instruction hypothesizing the appellant's supported defense of 'purchase rather than theft.' And, specifically, this is the appellant's point,
The state's reply to this point is that the verdict forms together with the conclusion of Instruction 6a, 'or you may find the defendant not guilty of burglary or stealing,' plainly permitted a finding of innocence under the appellant's plea of 'not guilty.' It is also suggested that 'the law of the case' referred to in the rule and the statute refers only to the 'essential elements of the case' and not to a defense.
In State v. Slusher, 301 Mo. 285, 286 S.W. 817, the appellant was charged with the larceny of a rowboat. He testified that he 'bought the boat from Bill Rounds at the mouth of...
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State v. Davis
...property or of permission and thus the court did not err in failing to instruct the jury on all the law of the case. Compare State v. Powers, Mo., 442 S.W.2d 4; State v. Tate, Mo., 436 S.W.2d 716 and State v. Drane, Mo., 416 S.W.2d 105. Also in this factual background is the assertion that ......
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State v. Brown
...law of the case upon which the court is required to instruct when evidence in the case so warrants. 1 Criminal Rule 26.02; State v. Powers, 442 S.W.2d 4, 6 (Mo.1969); State v. Drane, 416 S.W.2d 105, 107-08 (Mo.1967). MAI-CR, however, does not contain a pattern instruction on duress or coerc......
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State v. Cummings
...to the jury. There is no better or simpler method of resolving the issue in this case than to quote Barrett, C., in State v. Powers, 442 S.W.2d 4, 5--6 (Mo.1969): 'In State v. Slusher, 301 Mo. 285, 256 S.W. 817, the appellant was charged with the larceny of a rowboat. He testified that he '......
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State v. Stiers, 42255
...J., concur. 1 Missouri does, however, recognize the special negative defense of honest claim of ownership. See e. g., State v. Powers, 442 S.W.2d 4 (Mo.1969) (claimed to have bought the items); State v. Thornton, 557 S.W.2d 1 (Mo.App.1977) (claimed to have found one item and to have bought ......