State v. Richmond
Decision Date | 31 January 1905 |
Parties | THE STATE v. RICHMOND, Appellant |
Court | Missouri Supreme Court |
Appeal from Hannibal Court of Common Pleas. -- Hon. D. H. Eby Judge.
Affirmed.
Thomas F. Gatts for appellant.
(1) The court should have sustained defendant's motion in arrest of judgment, because it is bad criminal pleading to blend in one information different distinct offenses calling for different legal judgments and not growing out of the same transaction, as a defendant could not be consistently tried and convicted for burglary and grand larceny and for receiving the same goods knowing them to have been stolen under one and the same information. State v. Green, 24 Mo.App. 227; State v. Healy, 50 Mo.App. 243; State v. Nitch, 79 Mo.App. 99; State v Herix, 109 Mo. 654; State v. Wagner, 118 Mo. 626. (2) The second count in the information was bad because it failed to charge that defendant received the goods knowing the same to have been stolen and took the same into his possession for the purpose of aiding the thief or with the fraudulent intent of depriving the owner thereof. State v. Sweeten, 75 Mo.App. 127; 2 Bishop's New Criminal Law, sec. 1137; State v. Witt, 9 Mo. 671; State v. Waller, 174 Mo. 518; 20 Am. & Eng. Ency. Law, 447. (3) The court erred in its instructions to further instruct the jury that before the defendant could be convicted "they must believe that defendant received and took the goods into his possession with the intent and purpose of aiding the thief or with the fraudulent intent of depriving the owner thereof." State v. Sweeten, 75 Mo.App. 127; 2 Bishop's New Crim. Law, sec. 1137; State v. Waller, 174 Mo. 518; 1 Bish. Crim. Law, sec. 567; State v. Williams, 95 Mo. 247; People v. Johnson, 1 Parker C. C. 564. (4) Defendant's demurrer to the evidence should have been sustained, because under all the evidence the State failed to show that, at the time the defendant received the goods, he had any knowledge, either direct or circumstantial, that the goods were stolen; this was necessary under any construction of the law or the statute, relating to this offense. State v. Greenspan, 70 Mo.App. 468; State v. Sweeten, 75 Mo.App. 127; State v. Tissing, 74 Mo. 72.
Edward C. Crow, Attorney-General, and C. D. Corum for the State.
(1) It is well-settled law in this State that when property is stolen and recently thereafter the same property is found in the possession of a person, such person is presumed to be the thief, and if he fails to account for such possession in a manner consistent with innocence, the presumption becomes conclusive against him. State v. Jennings, 81 Mo. 188; State v. Kelly, 73 Mo. 608; State v. Babb, 36 Mo. 501. The evidence, therefore, is sufficient to convict the defendant of having stolen the goods. State v. Guild, 149 Mo. 370. (2) It is for the jury to say, under all circumstances, whether they are satisfied as to the identity of the goods, beyond a reasonable doubt. Convictions have been sustained where the evidence of the identity of goods is less positive than here. State v. Babb, 76 Mo. 501; Misseldine v. State, 21 Tex.App. 335; Underhill on Crim. Ev., 356. (3) It was entirely competent to join in the information a count for receiving stolen goods, with a count for burglary and larceny. The second count charged an offense in the nature of a corollary to the original felony, and such a joinder is good. State v. Daubert, 42 Mo. 242; 2 Bishop's New Crim. Procedure, sec. 981. (4) Besides, had the joinder been ill, defendant is not in a position to raise the question now. The matter should have been presented to the court before going to trial. Even in all cases where improper offenses are joined, judgments will not be arrested for that defect. 1 Bishop's New Crim. Procedure, secs. 424 and 447; 94 Am. Dec. 130.
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 thirty dollars or more and his punishment assessed at imprisonment in the penitentiary for two years. He appeals.
The evidence, in substance, was as follows:
To continue reading
Request your trial