State v. Richmond

• Decision Date: 13 December 1904
• Parties: STATE v. RICHMOND.
• Court: Missouri Supreme Court

84 S.W. 880

186 Mo. 71

STATE v. RICHMOND.

Supreme Court of Missouri, Division No. 2.

December 13, 1904.

CRIMINAL LAW — INFORMATION — OFFENSES— JOINDER—BURGLARY AND LARCENY—RECEIVING STOLEN GOODS—ELECTION—ELEMENTS OF OFFENSE — PROOF — POSSESSION OF GOODS — PRESUMPTIONS.

1. Under Rev. St. 1899, § 1916, making the receiving of stolen goods knowing them to be stolen punishable as larceny of the same, an information containing counts for burglary and larceny and for receiving stolen goods knowing the same to have been stolen was not defective for misjoinder of inconsistent offenses.

2. Where defendant made no motion to compel the state to elect between counts in an information for burglary and larceny and for receiving stolen goods, and the circuit court, of its own motion, compelled the prosecuting attorney to elect, and submitted only the offense of receiving stolen goods to the jury, defendant was not entitled to complain on appeal that the offenses were improperly joined.

3. In a prosecution for receiving stolen goods knowing them to have been stolen, the mere fact that defendant was found in possession of the goods was insufficient, without more, to establish defendant's guilty knowledge that the goods had been stolen—a necessary element of the offense.

4. In a prosecution for receiving stolen goods knowing them to have been stolen, evidence held sufficient to sustain a conviction.

5. Under Rev. St. 1899, § 1916, providing that any person receiving stolen property knowing the same to have been stolen shall be punished, etc., it was not necessary that an information for such offense should allege that defendant "took" the goods into his possession for the purpose of aiding the thief, or with the fraudulent intent to deprive the owner thereof.

Appeal from Hannibal Court of Common Pleas; D. H. Eby, Judge.

Lola Richmond was convicted of receiving stolen goods knowing the same to have been stolen, and he appeals. Affirmed.

Thomas F. Gatts, for appellant. E. C. Crow, Atty. Gen., and C. D. Corum, for respondent.

GANTT, P. J.

The prosecution in this case was commenced by information filed by the prosecuting attorney of Marion county, duly verified by him. The information contained two counts; the first for burglary and larceny, and the second for receiving stolen goods knowing the same to have been stolen. No motion to quash on the ground that the two counts were incongruous or inconsistent was filed, and no request was made to require the state to elect on which count it would seek a conviction. The evidence was heard, and at the close the court required the state to elect, and the prosecuting attorney chose to stand on the second count, and the court instructed the jury that the defendant was not on trial on the charge of burglary and larceny. The defendant was convicted of receiving stolen goods of the value of $30 or more, and his punishment assessed at imprisonment in the penitentiary for two years. He appeals.

The evidence, in substance, was as follows:

"John O. Lingle testified that he was a clerk in the employ of Brashears Bros., clothing merchants, at Hannibal, Missouri, on the 3d of November, 1903; that when he opened the front doors of the store on the morning of the 3d of November he discovered that the clothing on the tables was disarranged, and a number of pieces lying on the floor. He stated that the entire upper portion of the back door was glass, and that soon after entering the store he observed that the light was broken out of one of the back doors. He testified that there was a belted overcoat and a pair of pants and a vest missing. It seems that these goods had been laid aside at the request of a customer, and were therefore easily missed. The value of the coat was twenty-five dollars, the value of the pants about five dollars, and the vest about three dollars and fifty cents; that the overcoat was manufactured by Stein-Bloch & Co., and had their trade-mark. This is all of his testimony that was material.

"George Brashears testified that he is a member of the firm of Brashears Bros.; that the firm was engaged in selling men's, youths', and boys' clothing and furnishing goods; that he found the stock scattered promiscuously over the floor on being summoned by his clerk early on the morning of the 3d of November; that he discovered that the clothes referred to by Lingle in his testimony were gone, and that the pane of glass was broken out in the back door, leaving a space large enough for a man to enter; that the goods were brought back to the store by his partner; that they only missed one pair of pants, but recovered two or three pairs; that the total value of the goods stolen was seventy-five dollars; that the trousers had the name of Stein-Bloch & Co. on the buttons; that the coat had the same name on the flap, on the inside of the collar, and that it also had the label `Brashears Brothers' on the collar; that the label `Brashears Brothers' had been removed; that the hat was purchased by him from Young Bros.; that on the sweatband on the inside of the hat was the mark, `Young Brothers, Broadway, New York,' and on the other side this mark: `Brashears Brothers, Hannibal, Missouri,' that the `Brashears Brothers, Hannibal, Missouri,' label had been removed. He testified that the pants and the vest matched with the other wearing apparel, constituting the suit of which they were a part. On redirect examination he testified that the hat had the label `Brashears Brothers' on the inside of the sweatband, and that the sweatband was loose and rumpled up considerably when he recovered it.

"Sam Aubrey testified that during the middle of November, 1903, he was working for the defendant; that about that time the defendant instructed him one night to go down to the store and admit a boy by the name of Spooner; that he admitted the Spooner boy at the rear of the building owned by defendant; that the Spooner boy came through the alley; that the Spooner boy brought the clothing introduced in evidence; that the Spooner boy left, and witness locked the door, and went on up the street, and he observed the Spooner boy and defendant talking; that the defendant asked witness if he thought the clothes were worth six dollars, and was advised that he thought so. He was under the impression that the defendant gave Spooner some money; that he did not see it, and was not positive that it was paid, but from the motions made by the defendant and Spooner the witness was under the impression that the consideration passed; that he did not advise the defendant as to the number of articles of clothing brought by Spooner, nor did the defendant inquire as to the number. Witness testified that he was present two or three days later, when the defendant purchased a coat and two pairs of pants from a party by the name of Jones, and paid therefor three dollars. Witness identified the coat introduced in evidence as the one brought to defendant's door by Spooner.

"Joseph Brashears testified that he is a member of the firm of Brashears Bros. He described the condition of the store practically the same as his brother and clerk had previously done; that he was positive that the overcoat and pants and vest were missing, and was positive as to these on account of them having been laid aside; that he afterward saw this clothing in the secondhand store of the defendant, at Hannibal; that the same was in a wardrobe belonging to the defendant, the door of which was opened by the defendant in the presence of the officers; that the overcoat, hat, and a pair of pants were at the house of the defendant, and were brought to him by the defendant; that the defendant stated that he had worn the coat and hat; had worn it in the town of Hannibal, and intended to block the hat over, and keep it for his own use. He proved the venue.

"The defendant testified that he bought the goods from the Spooner boy and from a man who had a scar on his face (presumably Jones). The defendant was asked what he paid for the goods, and he evaded the question. The defendant stated that he purchased the goods along about the 1st of November.

"George Munson testified that he was constable about the 1st of December, 1903; that he procured a search warrant about that time to justify him in searching the secondhand store of Richmond; that he advised Richmond what was wanted, and instructed him to unlock the building, which the defendant did. He found the goods of the prosecuting witness in a wardrobe in Richmond's store. The goods were identified by Mr. Brashears. The defendant said he bought the goods from a man by the name of Spooner and from some fellow with a scar on his face."

The court thereupon instructed the jury as follows: "The court instructs the jury that the information in this cause and read to the jury is a mere formal charge or accusation against the defendant, and is not any evidence of his guilt. The defendant is presumed to be innocent of any offense until his guilt is established from the evidence in the cause beyond a reasonable doubt. If, therefore, the jury have a reasonable doubt of the defendant's guilt, they should acquit him; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant's guilt, and not a mere possibility of his innocence. The jury are the sole judges of the weight of the evidence and the credibility of the witnesses who testified in the cause. Unless the jury believe from all the evidence in the cause beyond a reasonable doubt that the defendant bought or received the property, or some portion thereof, mentioned in the information, from some other person, knowing said property to have been stolen, they will find him not guilty; and the mere naked fact of the possession of said property by defendant, if such is the fact, raises no presumption that defendant knew that said property had been stolen. The court instructs the jury that if they find from the evidence in the...