State v. Price, 42288
Decision Date | 12 March 1951 |
Docket Number | No. 1,No. 42288,42288,1 |
Citation | 361 Mo. 1034,238 S.W.2d 397 |
Parties | STATE v. PRICE |
Court | Missouri Supreme Court |
April 9, 1951.
Morris A. Shenker, St. Louis, for appellant.
J. E. Taylor, Atty. Gen., Arvid Owsley, Asst. Atty. Gen., for respondent
Defendant appeals from a conviction of obtaining money and property by means of a bogus check in violation of Section 561.450, Mo.R.S. 1949, for which offense he was sentenced to imprisonment in the State Penitentiary for a term of four years. The grounds of his appeal are: (1) there was no proof of corpus delicti; (2) admission into evidence of declarations of an alleged co-conspirator without proof of the conspiracy, and (3) there was no proof of intent to defraud one Golda Logsdon, as alleged in the information. These assignments require a detailed statement of the testimony, all of which was given by witnesses for the State.
Clyde Logsdon testified that on June 30, 1948, he lived at 4440 Chippewa, St. Louis, where his mother operated a radio store under the name of Chippewa Radio and Appliance Company. About seven p. m. on that date a man came into the store, selected a new Westinghouse portable radio, the price of which was thiry dollars, and tendered a check for fifty dollars in payment thereof. The man told Clyde Logsdon that his name was Ralph Miller and that the check tendered was a payroll check made out to him by the firm itself. The check, introduced in evidence as State's Exhibit 1, recited, 'St. Louis, Mo., June 30, 1948', was drawn on United Bank and Trust Company, payable to the order of Ralph L. Miller, for the sum of fifty dollars, and purported to be drawn by 'Central Moving and Storage Co., 4564 Olive Street, St. Louis, Mo., Agents Allied Van Lines, Robert Schuman'. The endorsements on the back are not copied into the record nor referred to in the evidence. Logsdon took the check back to his mother and had her 'O.K.' it, and returned with twenty dollars in cash. The man took the radio and cash and departed. He went across the street and entered a car in which there was another man. On the following day, two police officers brought a radio to the store where Logsdon identified it as the radio sold to the customer the previous evening. On July 2nd, Logsdon went to the Central District Police Station and viewed a number of men. He saw and identified the man who gave him the check and also saw defendant, but did not recognize him. Defendant was not the man who gave the check and was not in the store when it was given.
A qualified official of the United Bank and Trust Company testified that the check (State's Exhibit 1) was returned for the reason that there was no such account in the bank and that there was no authorization in the bank for Robert Schuman to sign checks and no account in Schuman's name.
Police Officer Ziegenbein testified that he and another officer arrested defendant on July 1, 1948, and took him to police headquarters. Defendant was there confronted with his brother-in-law, a Mr. Robertson. Upon interrogation by Ziegenbein, defendant stated: that he furnished his brother-in-law, Robertson, with this check; that three or four weeks prior to July 1st he and Robertson had entered into a scheme to cash bogus checks, which defendant had ordered printed and subsequently obtained from one Ralph Martin; that the transaction at the radio store on June 30, 1948, was the outgrowth of that scheme; that he did not go into the store when the radio was purchased, but remained in an automobile that had been borrowed in which he and Robertson had made a tour of the city in connection with this and other checks; that when Robertson took him home at approximately seven o'clock on the evening of June 30, he, defendant, received the Westinghouse radio purchased with the check and ten dollars of the cash; that the radio would be found in the home of his parents at 5911 Dale Avenue; that he did not know a Ralph L. Miller nor a Robert Schuman and did know the Central Moving and Storage Company to be a non-existent dompany; that he had no part in either filling in the check or the use of the check protector to prepare it, but knew that Robertson was passing the check at the time he passed it and knew that the check was not good; and that he knew the radio and cash given him was a part of the proceeds of the check cashed. Officer Ziegenbein further testified that he went to the Dale Avenue address and there recovered the radio and took it to the Chippewa Radio and Appliance Company, 4440 Chippewa Street, where it was identified by Clyde Logsdon.
Was the corpus delicti established independent of defendant's confession? Defendant cites, among other cases, State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551, 552, wherein the court said: 'The two elements necessary to prove the corpus delicti of a lottery in violation of Sec. 4704 [R.S. 1949, Sec. 563.430] are: (1) the establishing of a lottery by someone, (2) that the person charged aided or assisted in making or establishing it.' However, a careful reading of that case shows that the writer of that opinion really meant to say that the two elements above quoted were necessary to establish guilt of the defendant rather than that they were necessary to establish corpus delicti. This, for the reason, first, that later in the opinion it is stated: 'There is no evidence (independent of defendant's statements) to show the operation of any lottery or what took place at the Harlem Club or what defendant did there or elsewhere'; and, second, that the true rule then is stated: 'It is a settled rule of criminal procedure that testimony of a confession of the crime charged, made out of court by the accused, must be supported by independent proof of the corpus delicti; that is, by proof that a crime was in fact committed.'
In State v. Hawkins, Mo.Sup., 165 S.W.2d 644, 646, it was held: * * *
'But, once evidence other than the defendant's confession shows that the specific crime charged was committed by someone, then the defendant's confession in admissible and, of course, if believed completes the case.' See also State v. Cooper, 358 Mo. 269, 214 S.W.2d 19.
While it is the rule that corpus delicti must be proved independent of a confession, as set forth in the above cases, yet the requirements of the proof thereof are not as strict in cases where the facts proved correspond with the circumstances detailed in the confession. State v. Arndt, Mo.Sup., 143 S.W.2d 286, 287. The testimony of Clyde Logsdon that Robertson represented the check to be a payroll check and that he was Ralph Miller, the payee named therein, both of which statements were false, establishes, without more, the corpus delicti, to-wit: the criminal act and the criminal agency. And, too, the further testimony of Logsdon that after Robertson left the store he was seen to enter a car in which a man was sitting; the clear inference that the man in the car must have known Robertson obtained the radio...
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...statements of the defendant and of a co-participant unless corroborated by independent proof is apparent.23 See State v. Price, 361 Mo. 1034, 238 S.W.2d 397 (1951); People v. Pierce, 387 Ill. 608, 57 N.E.2d 345 (1944).24 Excluding the hearsay statements of Stewart and 'Junior', the evidence......
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...is incorrect and the rulings in those two cases to that effect should be and are hereby overruled. As pointed out in State v. Price, 361 Mo. 1034, 238 S.W.2d 397, 399, it would have been correct in those two cases to have said: 'that the two elements above quoted were necessary to establish......
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