State v. Priesmeyer

• Citation: 37 S.W.2d 425,327 Mo. 335
• Decision Date: 25 March 1931
• Docket Number: 30690
• Parties: The State v. Theodore Priesmeyer, Louis Priesmeyer, Jr., Lizzie Priesmeyer and Alice Priesmeyer, Appellants
• Court: United States State Supreme Court of Missouri

37 S.W.2d 425

327 Mo. 335

The State v. Theodore Priesmeyer, Louis Priesmeyer, Jr., Lizzie Priesmeyer and Alice Priesmeyer, Appellants

No. 30690

Supreme Court of Missouri

March 25, 1931

Appeal from Bates Circuit Court; Hon. W. L. P. Burney Judge.

Reversed and remanded.

E. E Hairgrove for appellants.

(1) The permitting of the hearsay testimony of Arl Richardson was and is such a palpable error. Sec. 22, Art. 11, Mo. Constitution; State v. Waggoner, 78 Mo. 644; State v Welford, 66 S.W. 570. (2) The court erred in giving the instructions 1, 2, 3 and 8 in regard to conspiracy, for the reason that no competent evidence whatever was offered by the State proving or tending to prove a conspiracy on the part of the defendants, or any of them, with Arl Richardson.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

(1) There was introduced in evidence over the objection of the defendants, the confession of one Arl Richardson. This was not from the lips of Richardson, but from some four witnesses who heard him make the confession. Richardson did not testify. Under the authorities, it would seem that the objection to this testimony should have been sustained. (a) Declarations and confessions made after the transactions are fully over, are admissible against the party only who made them, and one conspirator is not liable for the acts of another outside and independent of the conspiracy. Kelley's Criminal Law, sec. 925; State v. Buckley, 318 Mo. 25. Declarations of a co-conspirator made after the common criminal enterprise has been accomplished and merely narrative of past occurrences are inadmissible against another conspirator. State v. Forshee, 199 Mo. 145; State v. Hayes, 249 S.W. 50; State v. Buckley, supra. (2) When, after the commission of a crime, some act is undertaken by the conspirators to avoid exposure, to conceal the evidence of the crime, to secure the proceeds, to take means to prevent or defeat a prosecution during such time, statements of one conspirator are admissible in evidence against another. 16 C. J. 661; People v. Mol, 137 Mich. 692, 100 N.W. 913, 68 L. R. A. 871; 4 Ann. Cases 960; People v. Schmidt, 33 Cal.App. 426, 165 P. 563. (3) If the purpose of the visit to Richardson in jail is to be considered subject to this rule, then the statements and declarations of Richardson were properly admitted. 16 C. J. 663; People v. Hall, 51 A.D. 57, 64 N.Y.S. 437. On the other hand, if the theft of the Knoop chickens was the last act of the conspiracy, then the purpose of the visit to the jail cannot be considered, and the statements and declarations of Richardson were pure hearsay and their admission in evidence was error. (4) Appellants' assignments in his motion for new trial complain of the giving and refusing of instructions. These assignments are too indefinite to merit review by this court. Sec. 3735, R. S. 1929; State v. Standifer, 289 S.W. 857; State v. Simon, 295 S.W. 1080. (5) It was not necessary that each defendant be present when the crime was committed if the jury believed that a conspiracy had previously existed. State v. Porter, 199 S.W. 161; State v. Reich, 293 Mo. 425; State v. Midkiff, 286 S.W. 23.

OPINION

White, P. J.

The appeal is from a judgment upon conviction of each of the defendants of burglary and larceny, the sentence being two years for each offense for each defendant.

They were charged with breaking into a building of Louis Knoop at Cole Camp in Benton County, March 12, 1929, and stealing thirty-four chickens of the value of fifty dollars. Upon change of venue the trial was had in Bates County.

Theodore Priesmeyer and Louis Priesmeyer were the sons of Lizzie Priesmeyer, and Alice Priesmeyer was the wife of Louis. The evidence for the State tends to show that all those members of the Priesmeyer family were engaged more or less in the business of stealing and selling chickens.

Mr. Knoop, the night of March 12, 1929, locked his chickens in his chickenhouse, and the next morning he found the lock torn off the door and thirty-four of his single-comb Rhode Island Reds were gone. Later he visited the Farmers' Exchange Poultry House in Sedalia, where he found some chickens that resembled his. He took them home, but they did not demean themselves in a way to convince him that they were his and he took them back. Later he got five other chickens from the Producers' Produce Company of Sedalia and upon sufficient test he concluded that four of them were his. He identified them partly by bands on their legs. Chickens were sold by the defendants to the Produce Company March 18th. Again March 21, 1929, Alice Priesmeyer and two men who were not identified sold a bunch of chickens to the Produce Company which included the four chickens Mr. Knoop claimed. His identification was not very positive, but he thought they were his. They behaved as if they were at home. His test left the jury to infer whether it was sufficient. There was evidence to show movements of a six-cylinder Chevrolet sedan belonging to Louis Priesmeyer and a four-cylinder Chevrolet sedan owned by Theodore Priesmeyer. A Chevrolet sedan was seen parked about a quarter of a mile from Knoop's house on the night of March 12th. Various movements of those Chevrolet cars were testified to by several witnesses, indicating an opportunity for defendants to commit the crime. Theodore Priesmeyer was arrested in Kansas City at some time not definitely stated after the theft. He was then in possession of considerable money and was on his way further west. Three letters were found on him addressed to his mother and brother which contained numerous statements seeming to refer to the stealing of chickens by them. He signed his name Frank Brown. The defendants offered evidence to show that there was a Frank Brown, and the State offered evidence to show there was no such person.

While the evidence is weak we think that a submissible case was made out.

I. One error assigned is the admission of statements made in the presence of several witnesses by one Arl Richardson who, the State claims, was under arrest at the time for the crime. It is asserted by the State that the theft of the Knoop chickens was part of a general enterprise and that Arl Richardson was a member, with the Priesmeyers, of the conspiracy. Arl Richardson was arrested March 26th by the sheriff as "being accessory to the crime." He was not charged in the same complaint with the Priesmeyers and the record does not show that any formal charge was filed against him. After his arrest four witnesses testified to statements he made, some of them designating it a confession.

Louis Knoop testifying was asked if Richardson told him anything about "who took the chickens." The witness answered that he did, fixing no time at which the conversation took place except that Richardson was under arrest. He said Richardson told him that he, Richardson, sat in the car while the two Priesmeyer boys went to the chicken house, that one of them got the chickens out, the other one stood guard, and then they both carried the chickens with them; they had the car sitting about a quarter of a mile north of the barn.

J. W. Allen, the sheriff, testified to a similar statement of Richardson describing in detail how they got the chickens out of the hen house. They were the Louis Knoop chickens.

H. C. Ferguson, deputy sheriff, testified to hearing Arl Richardson explain in pretty much the same way how the chickens were taken. How Richardson sat in the car while Ted and Louis went to get the Knoop chickens. As he told it, Alice Priesmeyer was with the men at the time of the theft.

Herman Reimenschnitter gave similar testimony.

The chickens had been stolen and disposed of many days before. The chickens which Knoop identified were sold by the Priesmeyers March 21st. Richardson was arrested March 26th. How long after his arrest these...