State v. Richmond

Decision Date31 January 1905
PartiesTHE STATE v. RICHMOND, Appellant
CourtMissouri 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.

GANTT, P. J. Burgess, J., absent.

OPINION

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 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:

"John O. Lingle testified that he was a clerk in the employ of Brashears Brothers, clothing merchants, at Hannibal Missouri, on the 3rd of November, 1903; that when he opened the front doors of the store on the morning of the 3rd 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 & Company, 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 Brothers; 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 third 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 & Company 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 Brothers; that on the sweat-band, 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 re-direct examination he testified that the hat and the label, 'Brashears Brothers' on the inside of the sweatband, was loose from the hat and that the hat was 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 their having been laid aside; that he afterwards saw this clothing in the second-hand 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...

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