State v. Sakowski

• Decision Date: 21 November 1905
• Citation: 90 S.W. 435,191 Mo. 635
• Parties: STATE v. SAKOWSKI.
• Court: Missouri Supreme Court

90 S.W. 435

191 Mo. 635

STATE v.SAKOWSKI.

Supreme Court of Missouri, Division No. 2.

November 21, 1905.

1. RECEIVING STOLEN GOODS — INDICTMENT— NECESSARY ALLEGATIONS.

An indictment under Rev. St. 1899, § 1916, which makes it an offense to receive any property embezzled or stolen from another knowing the same to have been so embezzled or stolen, is sufficient, where it alleges that defendant feloniously and fraudulently bought and received the goods from the thief, knowing the same to have been stolen, without further alleging, as in an indictment for larceny, that defendant received the goods with intent to deprive the owner thereof.

2. SAME—SURPLUSAGE.

An indictment for receiving stolen goods need not allege that defendant knew that the goods were stolen from any particular person, and an allegation that he did know the person from whom the goods were stolen may be disregarded and need not be proven.

3. SAME—DESCRIPTION OF STOLEN PROPERTY.

An indictment for receiving stolen goods, which describes the stolen property as "two cases containing thirty-five pairs of shoes," includes the shoes in its description of the stolen property, and not merely the boxes.

4. SAME—INSTRUCTIONS.

In a prosecution for receiving stolen goods, a charge authorizing a conviction, if the jury should find that the property was unlawfully stolen from the possession of the owner by some person other than defendant, with the intent on the part of the thief to convert the property to his own use and to permanently deprive the owner thereof "without its consent," and the defendant afterwards received the property into his possession knowing at the time he received the property that it was stolen, was not subject to the objection of failing to require the jury to find, in order to convict defendant, that the taking was without the owner's consent.

5. SAME.

In a prosecution for receiving stolen goods, a charge that, if defendant or his wife bought the property in good faith from one having possession thereof and defendant had no knowledge at the time that the property was stolen, he should be acquitted, was favorable to defendant and not subject to criticism by him.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Ike Sakowski was convicted of receiving stolen goods and appeals.Affirmed.

Thos. B. Harvey, for appellant.The Attorney General and Rush C. Lake, for the State.

GANTT, J.

The defendant was indicted for receiving stolen goods in the city of St. Louis on May 21, 1903.As the indictment is challenged we produce it in full, as follows: "The grand jurors of the state of Missouri within and for the body of the city of St. Louis, now here in court duly impaneled, sworn, and charged, upon their oath present that Ike Sakowski, on and about the ninth day of May, one thousand nine hundred and three, at the city of St. Louis aforesaid, two cases containing thirty-five pairs of shoes, all of the value of forty-nine dollars and eighty cents, of the goods, chattels and personal property of the St. Louis and San Francisco Railroad Company, a corporation, then lately before feloniously stolen, taken, and carried away from the said St. Louis and San Francisco Railroad Company, a corporation, as aforesaid, with the intent on the part of the thief to permanently deprive the owner of the use thereof, feloniously and fraudulently did from said thief buy, receive and have, the said Ike Sakowski then and there well knowing the said goods, chattels and personal property to have been stolen, taken and carried away from the said St. Louis and San Francisco Railroad Company, a corporation as aforesaid, the owner thereof, with the intent on the part of the thief, as aforesaid, to permanently deprive the owner of the use thereof; contrary to the form of the statute in such case made and provided and against the peace and dignity of the state."The defendant was arraigned and entered his plea of not guilty.Afterwards, on January 11, 1904, the defendant withdrew his plea of not guilty and filed his motion to quash, on the ground that the indictment failed to state facts sufficient to constitute any offense, and did not allege that the property was received by the defendant with the intention to deprive the owner thereof, or any other intent or purpose in receiving such property.The motion to quash was overruled, and defendant duly excepted.Defendant was then rearraigned, and pleaded not guilty.

The testimony on the part of the state tended to establish the following facts: "That on the 8th day of May, 1903, the Brown Shoe Company, a firm in St. Louis, Mo., sent by the St. Louis Transfer Company 62 cases of shoes, consigned upon order to Miller Bros., Leger, Okl. T., to the St. Louis & San Francisco Railroad freight depot in the city of St. Louis.These 62 cases were checked out of the Brown Shoe Company, and were in turn checked into the `Frisco Depot'; but in checking the shipment from the depot into the car it was found the shipment was two cases short.Immediately upon the shortage being discovered, the railroad company notified the Brown Shoe Company and the St. Louis Transfer Company's foreman, Ben Humphreys, testifies that about 2 o'clock on the afternoon of that day he saw Zinks pass along the street near the place of business of the transfer company with two cases of shoes in his wagon.He knew Zinks, for he had until noon that day been working for the St. Louis Transfer Company as an extra or `wild catting,' which means that the transfer company was short of teams and hired this man with the team of another man to do hauling.That he had been discharged at noon that day for lack of work.It appears that Zinks drove down the street in the neighborhood of defendant's secondhand store and then opened negotiations with a colored man named Jackson, who was to act as agent for Zinks in securing a customer for the shoes.The testimony of Zinks is to the effect that he stole the shoes at noon or a little later, and then hauled them to the corner of Second and Valentine streets in St. Louis, about half a block from defendant's store, which is at 502 South Second street.Jackson was directed to go to the defendant's place of business and arrange the sale, which he did, and Zinks drove into the alley, unloaded the two cases of shoes, and Zinks, Jackson, and a man known as Willir, carried the two cases into the defendant's place of business, and the shoes were at once taken out of the cases and piled on the floor, and at the direction of the defendant the empty cases were carried out of the store and given to an old colored woman, and Zinks ordered them burned, and the shoes left in the paper boxes or cartons, each carton containing a pair of shoes and each carton bearing the name of `Brown Shoe Co., as manufacturers, St. Louis, U. S. A.'The wooden boxes or cases were each marked on the outside with the name of the consignee, `Miller Bros., Leger, Oklahoma Territory.'The negotiations for the sale to the defendant were conducted by the colored man, Jackson, with the defendant's wife.She paid $10 for the 35 pairs of shoes to Zinks.The testimony of both Jackson and Zinks is to the effect that the defendant was in the store at the time and knew of the transaction.Jackson testified that defendant helped to take the shoes out of the boxes, and, when the boxes were emptied, defendant said to the old colored woman, `Take the boxes out,' meaning the two wooden boxes.Jackson testified that for his share in making the trade Zinks gave him a pair of shoes, and that he traded them to the defendant for a secondhand pair.Zinks corroborates the statements of Jackson as to the sale of the shoes—that they were paid for by the defendant's wife, that defendant was there when the shoes were received, and that defendant`took and piled the shoes away'; and Zinks testifies that the shoes were delivered to defendant, who gave directions as to where the shoes should be placed in the store.Zinks testified that he delivered the shoes in an ice wagon marked `Theodore W. Merten Ice & Coal Company,' that he had on his working clothes, clothes he had on when hauling goods upon a transfer wagon, and that he was under the influence of liquor at the time."

At the close of the state's evidence the defendant demurred to it on four grounds, to wit: "(1) It is insufficient to sustain the allegations of the indictment.(2) It is shown that the purchase and receipt of the property was by the wife of defendant, and not by him.(3) The proof shows no value of the cases, the only property alleged to have been received, the contents thereof, as alleged in the indictment, being merely descriptive of the cases, and no allegation of receiving shoes.(4) There is no evidence to sustain the allegation that defendant knew that the property had been stolen from the `St. Louis & San Francisco Railroad Company.'"—which demurrerthe court overruled, and thereupon the defendant offered evidence in substance as follows: "The testimony upon the part of the defendant was to the effect that he had nothing to do with the transaction, that the negotiations were conducted solely by his wife, that he did nothing concerning the purchase nor the receipt of the shoes into his store.He admits the ownership of the store and that it was run in his name.His contention is that his wife paid 75 cents per pair for the shoes, or a total sum of $26.Defendant's wife testifies that the shoes were purchased by her, and that she paid $26 for them, and that defendant had nothing to do with them.Both defendant and his wife sought by their testimony to justify the purchase of the shoes upon the theory that it was done in aid of the police in the detection of crime, claiming the police gave them permission to so conduct their business that anything could be purchased by them, and these should be exhibited and held until the police were advised whether it was stolen."

At the close of all of...