State v. Quinn

• Decision Date: 07 July 1939
• Docket Number: No. 36462.,36462.
• Citation: 130 S.W.2d 511
• Parties: THE STATE v. PAUL QUINN, Appellant.
• Court: Missouri Supreme Court

130 S.W.2d 511

THE STATE v. PAUL QUINN, Appellant.

No. 36462.

Supreme Court of Missouri.

Division Two, July 7, 1939.

Appeal from Butler Circuit Court. — Hon. Robert I. Cope, Judge.

REVERSED AND REMANDED.

Lawrence E. Tedrick, Byron Kearbey and W.L. Proffer for appellant.

(1) The information charges that the cattle alleged to have been stolen were the property of Joe Gardner and J.S. Hutchison, but did not allege they were partners, or set out the interest each had therein. The evidence showed that the cattle had belonged to J.S. Hutchison, but Gardner had purchased same the day before but had not paid for them, and that they had not been delivered to him on the date they were stolen. The information is therefore defective because it does not name the true owner of the property. State v. Cary, 1 S.W. (2d) 143; State v. Long, 213 S.W. 436; State v. Lackey, 132 S.W. 602. (2) Instruction 1 is erroneous for the reason it is not based on the information and does not follow the charge set out therein. The information charges that the cattle alleged to have been stolen belonged to Joe Gardner and J.S. Hutchison, although it did not state whether they were partners, whether either of them was bailee or designate the interest of either. Instruction 1 requires the jury to find that the cattle belonged to Joe Gardner, and then in the same breath, instructed the jury that if they found certain facts they would find the defendant guilty as charged in the information, which, of course, means that the stolen property belonged to Joe Gardner and J.S. Hutchison. Such instruction is confusing and inconsistent and should not have been given. State v. Long, 213 S.W. 436; State v. Brown, 16 S.W. 406. (3) The court erred in refusing to permit the defendant to prove his good reputation for being a law-abiding citizen by the witnesses, W.W. Jenkins, a merchant, and John C. Corrigan, President of the State Bank of Poplar Bluff, after both had qualified as character witnesses. Proof of good character may be offered to lessen the probability of guilt provided it is restricted to the traits involving the offense. State v. Taylor, 238 S.W. 489; State v. Anslinger, 71 S.W. 1041; State v. King, 78 Mo. 555; State v. Alexander, 66 Mo. 148; 16 C.J., p. 582, sec. 1124; State v. Archie, 256 S.W. 807. (4) The defendant requested the following instruction which was refused by the court, and which is in words and figures as follows: Instruction D-1. "The Court instructs the jury that unless you believe and find from all the evidence in this case, that the defendant, Paul Quinn, at the County of Butler and State of Missouri, either acting alone or jointly with another or others, at any time within three years from the date of the filing of this information, to-wit: July 23, 1937, did feloniously steal, take and carry away a white faced cow and calf of any value, the property of Joe Gardner, with felonious intent to convert the same to his own use and permanently deprive the owner thereof without his consent, then you must acquit the defendant." This instruction is the converse of Instruction 1, and the court's failure to give same was reversible error. State v. Fraley, 116 S.W. (2d) 17; State v. Shields, 146 S.W. 932; State v. Majors, 237 S.W. 486.

Roy McKittrick, Attorney General, and Arthur O'Keefe, Assistant Attorney General, for respondent.

(1) The information in this cause is in proper form. Secs. 4064, 4065, R.S. 1929; State v. Bockman, 124 S.W. (2d) 1205; State v. North, 85 S.W. (2d) 46, 337 Mo. 470; State v. Gentry, 55 S.W. (2d) 941. (2) The variance as to ownership is not material. State v. Rodgers, 102 S.W. (2d) 566; State v. McGee, 83 S.W. (2d) 98, 336 Mo. 1082; Sec. 3562, R.S. 1929; 36 C.J. 861, sec. 408; State v. Farris, 61 S.W. (2d) 703, 333 Mo. 17; State v. Smith, 252 S.W. 662; State v. Woolsey, 33 S.W. (2d) 957; State v. Wright, 95 S.W. (2d) 1159; Porter v. State, 123 Ark. 519, 185 S.W. 1090. (3) Instruction 1 is not erroneous because it requires the jury to find that the cattle were the property of Gardner while the information charges that they belonged to Gardner and Hutchison. State v. Jenkins, 213 S.W. 798. (4) The appellant in his third assignment of error states that the court erred in refusing to permit the appellant to prove that his reputation for honesty was good. State v. Scott, 58 S.W. (2d) 275, 332 Mo. 255; State v. Taylor, 238 S.W. 489, 293 Mo. 210; 8 R.C.L., p. 208; 16 C.J. 582, sec. 1124; Butler v. State, 91 Ala. 87, 9 So. 191; State v. Conlan, 19 Del. 218; State v. Bloom, 68 Ind. 54; 8 R.C.L., sec. 203, p. 208.

LEEDY, J.

Appellant was convicted in the Circuit Court of Butler County of the crime of grand larceny. The jury assessed his punishment at a term of two years in the penitentiary, and he appeals. Error is assigned in: (1) That the information is defective; (2) that the State's main instruction is confusing and misleading; (3) the refusal of an instruction offered by appellant, which submitted the converse of the State's main instruction; (4) failure of the court to instruct on the law of alibi, whether requested or not; (5) in refusing to permit named witnesses to testify as to appellant's reputation for certain traits of character; (6) that the court coerced the jury in arriving at its verdict.

This is a companion case to State v. George Conley (Mo.), 123 S.W. (2d) 103, and State v. Claud Turner (Mo.), 123 S.W. (2d) 105. On a former trial, the jury was unable to agree upon a verdict. Appellant does not challenge the sufficiency of the evidence, so that a brief statement of the facts will suffice. At the time of the alleged offense appellant, Paul Quinn, a white man, conducted a drugstore at Poplar Bluff. A white-faced cow and a white-faced calf were the subjects of the alleged larceny. The evidence on the part of the State was to the effect that appellant arranged with three colored boys, Willie Green, George Conley and Claude (Little Babe) Turner, to go down near Neelyville, in Butler County, for the purpose of stealing the cattle in question. He also arranged with one Virgil Thompson, the owner of a truck, to transport the cattle so to be stolen. Both Willie Green and Virgil Thompson testified on the part of the State, and from their testimony it appears that appellant, in company with Thompson and the three colored boys, left Poplar Bluff late in the evening on April 12, 1937, in a Plymouth car owned by Willie Green, and drove to the farm of one J.S. Hutchison, three-quarters of a mile north of Neelyville, where there was a herd of some twenty-five or thirty cattle in Hutchison's lot; the colored boys opened the gate and drove the cattle out. Appellant and Thompson returned to Poplar Bluff for the purpose of getting trucks. They came back to the place where they had left the colored boys and were successful in loading only one cow and calf in the Thompson truck. These were taken by Thompson over into Carter County and sold to a man named Gargac, who lived at Grandin, which was also the home of Thompson. Two or three days thereafter Quinn went to Grandin, where he and Thompson divided the proceeds arising from the sale of said cow and calf. The appellant's defense was an alibi, which was corroborated by the testimony of several witnesses.

I. The point that the information is defective for the reason it does not name the owner of the property alleged to have been stolen is not tenable, as a mere reading of the information will disclose. Moreover, Turner, Conley and Green were jointly charged in a separate information with the larceny in question. The information in their case is an exact duplicate of the one in the case at bar, except, of course, as to the name of defendant. On Conley's recent appeal (State v. Conley, supra), the information was considered and discussed at length, and held good. [See, also, State v. Turner (Mo.), supra.]

II. Appellant did not request an instruction on his defense of alibi, nor was one given by the court on its own motion. It is contended that it was the duty of the court to so instruct, whether requested or not. The authorities are to the contrary. [State v. Enochs, 339 Mo. 953, 98 S.W. (2d) 685; State v. Bagby, 338 Mo. 951, 93 S.W. (2d) 241; State v. Trice, 338 Mo. 744, 92 S.W. (2d) 135.] In the Bagby case, supra, it was said: "The court was not bound to instruct the jury upon the defense of alibi as a part of the law of the case under Section 3681, Revised Statutes 1929 (Mo. Stat. Ann., sec. 3681, p. 3227), without a request from defendant for such instruction. [State v. Parker, 301 Mo. 294, 301 (5), 256 S.W. 1040 (5); State v. Cardwell, 312 Mo. 140, 145, 279 S.W. 99, 100 (3); State v. Hadlock, 316 Mo. 1, 7, 289 S.W. 945, 947 (3); State v. McCullough, 316 Mo. 42, 48, 289 S.W. 811, 813 (3); State v. Sandoe, 316 Mo. 55, 65, 289 S.W. 890, 894 (10); State v. Wilson, 321 Mo. 564, 569 (4), 12 S.W. (2d) 445, 447 (4).] The Cardwell and Wilson cases, just cited, give as one of their reasons that alibi is an affirmative defense. In citing them, we are not to be understood as subscribing to that view. [See, 16 C.J., secs. 1004, 1588, pp. 533, 777; State v. Howell, 100 Mo. 628, 663, 14 S.W. 4, 14; State v. King, 174 Mo. 647, 655, 74 S.W. 627, 629; State v. Malone, 327 Mo. 1217, 1228, 39 S.W. (2d) 786, 790 (6).]" The point is ruled against appellant.

III. The appellant formulated and offered a correct instruction submitting the converse of the State's main instruction, which the court refused to give. In so doing, the court fell into error. The most recent expression of this court on the subject will be found in State v. Fraley, 342 Mo. 442, 116 S.W. (2d) 17. The authorities are there collated, and analyzed. It holds that it is error to refuse a correct instruction submitting the converse of the State's main instruction, unless it is fully and fairly covered by other instructions, and this is true notwithstanding the State's main instruction concludes with the words...