State v. Quinn

• Decision Date: 21 February 1940
• Docket Number: 36740
• Parties: The State v. Paul D. Quinn, Appellant
• Court: Missouri Supreme Court

136 S.W.2d 985

345 Mo. 855

The State v. Paul D. Quinn, Appellant

No. 36740

Supreme Court of Missouri

February 21, 1940

Appeal from Butler Circuit Court; Hon. Robert I. Cope Judge.

Affirmed.

W L. Proffer for appellant.

(1) The defendant's demurrer at the close of all the evidence should have been sustained, First, because there was a total failure of proof of an independent source, material to the issue, which of itself and without the aid from the accomplice's testimony, that tended to connect the defendant with the crime charged; Second, there was a failure of proof in this, that the Information charged that the Warehouse belonged to "the Phillips 66 Oil Company, a Corp.", and that the goods stolen belonged to "the Phillips 66 Oil Company," without showing whether it was a partnership or a corporation; and, the proof showed that the warehouse and the property stolen both were the property of the "Phillips Petroleum Company", a Corporation. The exact testimony by the State's own witness, Tony Saracini, is as follows, quote: Page 40 of Trans. by Mr Bloodworth: "Q. What is your occupation? A. I'm agent for the Phillips Petroleum Company. "Q. Is that -- that is a corporation, is it? A. Yes, sir. Q. Where is your warehouse located? A. Our warehouse is right south of town on the ditch road. Q. That's -- then that's the warehouse that was broken into? A. Yes, sir." All of which shows a total failure of proof and amply sufficient to warrant the trial court in sustaining defendant's demurrer. State v. West, 24 S.W.2d 1006; State v. Corp., 22 S.W.2d 776; State v. Donnelli, 22 S.W.2d 781; State v. Vinson, 22 S.W.2d 779; State v. Huff, 296 S.W. 121; State v. Parks, 13 S.W.2d 1107; State v. Varnell, 289 S.W. 845; State v. Nelson, 21 S.W.2d 190; State v. Stewart, 289 S.W. 943; State v. Keltner, 278 S.W. 825; State v. Blocker, 274 S.W. 1097; State v. Dildine, 269 S.W. 653; State v. Ferrell, 248 S.W. 979; State v. Lane, 221 Mo.App. 148; 1 Cyc. of Evi., p. 104. (2) Appellant complains that the trial court committed error in permiting the State to offer proof as to the defendant's reputation for "truth and veracity" over the objection and exception of defendant, when that particular trait of defendant's character had not previously been put in issue by the defendant, because under the established rule the proof must be confined to the particular trait of character of defendant involved in the crime charged, and to the trait of character put in issue by defendant. State v. Eddington, 286 S.W. 144; State v. Thomas, 78 Mo. 343; State v. Cooper, 71 Mo. 436; 1 Greenleaf Evi., sec. 469; 1 Wharton Evi., sec. 569; 3 Cyc. of Evi., p. 12; State v. Grant, 79 Mo. 133. (3) Complaint is made of the trial court's refusal of defendant's motion to instruct the jury on the issue of petit larceny. It is the duty of the trial court to instruct the jury on all the law involved in the case on trial and supported by any evidence. The proof in this case on the value of the property stolen was very vague and indefinite, and if the jury was warranted under the evidence as to the description of the property taken that it was of less value than alleged then the jury should have been guided by an instruction on petit larceny. State v. Conway, 241 Mo. 290; State v. Nichols, 222 Mo. 434; State v. Lackey, 230 Mo. 707; State v. Hoag, 232 Mo. 308; State v. Harris, 232 Mo. 317. (4) It is charged that the complaint filed before the justice of the peace was defective and insufficient because it did not name the true owner of the building burglarized, nor the true owner of the property stolen. That the information filed and upon which defendant was placed upon trial was likewise fatally defective, not only because it did not correctly name the true owner of either the building or the property, but, further alleged the ownership to be in an unknown and a nonexistant company, which is a total failure to name any ownership, and this being a case of proving the crime of burglary and larceny, a failure to name the true owner of both the place burglarized and the property taken is fatal to the information and it will not support the conviction and judgment for either offense. State v. Henschel, 250 Mo. 263, 157 S.W. 311; State v. English, 67 Mo. 136; State v. Fay, 65 Mo. 490; State v. Jones, 168 Mo. 498; Sec. 3554, R. S. 1929; State v. Wall, 39 Mo. 532; State v. Clark, 223 Mo. 48. (5) Appellant complains of the error of the trial court in permitting the prosecuting attorney, successor to the former who made the original information, to amend the information at the time the case was called for trial; First, because the amended information was not sworn to, and because after the amendment it was not supported by the complaint which was filed before the justice of the peace; and, Second, because the amendment was only as to the ownership of the building burglarized, and did not amend the defect as to the ownership of the property stolen; and, Third, because the original information and the complaint did not allege any ownership, but, named an unknown and nonexisting company so there was nothing to amend; and, Fourth, that the purported amendment was as to the "Substance" and not as to the "Form" of the Information, which is not permissible under the law; and, Fifth, because the amended information was not sworn to, and was not supported, as amended, by the complaint. State v. Smith, 264 S.W. 52; State v. Fox, 300 S.W. 820; State v. Horn, 93 Mo. 190; Sec. 3554, R. S. 1929; State v. Clark, 223 Mo. 48, 122 S.W. 665; State v. Roswell, 153 Mo.App. 338, 133 S.W. 99; State v. Jenkins, 92 Mo.App. 439; State v. Walton, 255 Mo. 232, 164 S.W. 211. (6) The information wholly failed to allege the necessary facts to constitute the crime of burglary and larceny. It was error to permit the State to proceed to trial, and the fatally defective information will not support the conviction and judgment. (7) Appellant complains of the variance between the allegations of the information and the proof offered by the State. It was not only necessary to allege the true ownership of the building burglarized and also the property taken, but that the proof must sustain the allegations. In this case, the State alleged ownership of both the building and the property to be in the "Phillips 66 Oil Company," a company not in existence, when the proof showed both the building and the property belonged to the "Phillips Petroleum Company." This was a fatal variance and will not support a conviction for the offense charged. State v. English, 67 Mo. 136; State v. Chamberlain, 75 Mo. 382; State v. Fay, 65 Mo. 490; State v. Smith, 31 Mo. 120; State v. Griffie, 118 Mo. 188, 230 Mo. 680; State v. Mohr, 55 Mo.App. 325; State v. Reynolds, 106 Mo. 146; State v. Horn 93 Mo. 190; State v. Sherrill, 278 S.W. 992, 277 Mo. 228.

Roy McKittrick, Attorney General, Wm. Orr Sawyers and Lawrence L. Bradley, Assistant Attorneys General, for respondent.

(1) The court did not err in permitting witness Woods, to testify as to appellant's reputation for truth and veracity. State v. Scott, 332 Mo. 255, 58 S.W.2d 275; State v. Ross, 306 Mo. 499, 267 S.W. 853. (2) The court did not err in overruling appellant's demurrer at the close of the whole case. State v. Parker, 324 Mo. 734, 24 S.W.2d 1023; State v. Braden, 295 S.W. 784; State v. Erlbacher, 270 S.W. 277. (3) The court did not err in refusing to instruct the jury on petit larceny. State v. Enochs, 339 Mo. 953, 98 S.W.2d 685. (4) The information is in proper form and is sufficient. State v. Carson, 323 Mo. 46, 18 S.W.2d 457; State v. Latham, 124 S.W.2d 1089; State v. Lackey, 230 Mo. 707; State v. Kaplan, 16 S.W.2d 35; State v. Cain, 31 S.W.2d 559; State v. Brown, 181 Mo. 233. (5) There is no fatal variance between the charge and the proof. State v. Harl, 137 Mo. 252; State v. Nelson, 101 Mo. 477; State v. Lackey, 230 Mo. 707; State v. Fike, 324 Mo. 801, 24 S.W.2d 1027. (6) The court did not err in permitting the prosecuting attorney to amend the information. (7) The court did not err in giving Instruction 2. State v. Busch, 119 S.W.2d 265. (8) The argument of the prosecuting attorney is proper. State v. Watson, 1 S.W.2d 837; State v. Mathews, 98 Mo. 125; State v. Linders, 229 Mo. 671, 253 S.W. 716. (9) The court did not err in failing to grant a new trial on the evidence taken in support of said motion tending to impeach the witness Paul Patterson and Green, and tending to show that their testimony was prejudiced. State v. Vinson, 107 S.W.2d 16; Gavin v. Forrest, 230 Mo.App. 662, 72 S.W.2d 177; Neal v. K. C. Rys. Co., 229 S.W. 215.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant, Quinn, was tried in the Circuit Court of Butler County, Missouri, on a charge of burglary and larceny. He was convicted of burglary in the second degree and sentenced to imprisonment in the State penitentiary for a term of nine years. An appeal was taken to this court.

Appellant did not contend that the evidence was insufficient to sustain a conviction, except in one particular which will be noted later in the opinion. A brief statement of the facts will therefore suffice. Two witnesses, named Green and Patterson testified that appellant informed them that he needed some tires; that he had noticed tires in the Phillips 66 Warehouse; that appellant advised them to break into the warehouse and get the tires for him; that appellant furnished them, the witnesses, with gas and a car so that the tires could be taken to appellant's place, a short distance from Poplar Bluff. Green and Patterson further testified that they went to the warehouse that night, being in May, 1937, and forced their way into the building. They testified that the tires were locked on a chain, which made it impossible...