State v. Shapiro

• Decision Date: 02 February 1909
• Citation: 115 S.W. 1022,216 Mo. 359
• Parties: STATE v. SHAPIRO.
• Court: Missouri Supreme Court

115 S.W. 1022

216 Mo. 359

STATE v. SHAPIRO.

Supreme Court of Missouri, Division No. 2.

February 2, 1909.

1. CRIMINAL LAW (§ 1087)—NEW TRIAL—MOTION —FILING—TIME.

Where the record showed that accused was convicted on May 9, 1907, and that the motion for a new trial was filed on the same day, a recital that thereupon defendants by their attorney filed their motion for a new trial herein did not support an objection that the record did not show that the motion was filed within four days after verdict.

2. RECEIVING STOLEN GOODS (§ 7)—INDICTMENT—VARIANCE.

In a prosecution for receiving stolen copper, property of a smelting company, defendant was not entitled to an acquital because the complaining witness testified that the company had no copper metal at the time, and that the property stolen and received by defendant was 11 ingots of brass; other witnesses having testified on behalf of that state that the property stolen and received by defendant was copper.

3. WITNESSES (§ 402)—CONTRADICTION—IMPEACHMENT.

Though a party may not impeach his own witness directly by evidence of bad character

for truth and veracity or indirectly by evidence of contradictory statements, he is not bound by the testimony so as to be precluded from disproving it by the testimony of other witnesses.

4. WITNESSES (§ 402)—IMPEACHMENT—IMPEACHING EVIDENCE—MATERIALITY.

In a prosecution for receiving stolen goods on March 30, 1907, a witness, having testified that on that day defendant traded with L. for a horse which was used to procure the goods, was not impeached by evidence that the horse transaction occurred on the previous 13th of March; the evidence as to the horse trade being immaterial to the issue.

5. CRIMINAL LAW (§ 1036)—TRIAL—RECEPTION OF EVIDENCE—OFFER OF PROOF.

The sustaining of an objection to a question cannot be reviewed in the absence of an offer of proof.

6. CRIMINAL LAW (§§ 507, 780)—INSTRUCTIONS —RECEIVING STOLEN GOODS—"ACCOMPLICES."

The receiver of stolen goods, knowing them to be stolen, being guilty of an offense distinct from the larceny of the goods, the receiver and the thief are not "accomplices," so that there was no error in withdrawing an instruction cautioning the jury against the testimony of accomplices.

7. RECEIVING STOLEN GOODS (§ 9)—INSTRUCTIONS.

Where, in a prosecution for receiving stolen copper metal, the complaining witness testified that his company from which the metal was stolen had no copper in its possession at the time, and that the metal stolen was brass, while other witnesses testified that copper bars were stolen and sold to defendant, an instruction that if the jury believed that the property described in the information, to wit, 10 bars of new copper metal, or 10 bars of metal "of the description mentioned in the evidence," were stolen, and that defendants unlawfully and fraudulently purchased and received and had in their possession the "said" property knowing it to have been stolen, etc., they should be found guilty, was erroneous as authorizing a conviction whether metal stolen and received was copper, as charged, or brass, as testified by the complaining witness.

8. LARCENY (§ 40)—INDICTMENT—VARIANCE.

Under Const. art. 2, § 22 (Ann. St. 1906, p. 155), providing that accused may demand the nature and cause of the accusation against him, a person cannot be charged with stealing copper, and convicted of stealing brass, notwithstanding the statute of jeofails.

Appeal from St. Louis Circuit Court; Geo. H. Williams, Judge.

Max Shapiro was convicted of receiving stolen goods, and he appeals. Reversed, and new trial granted.

C. Orrick Bishop, for appellant. Elliott W. Major, Atty. Gen., and James T. Blair, Asst. Atty. Gen., for the State.

GANTT, P. J.

At the April term, 1907, of the circuit court of the city of St. Louis, the circuit attorney filed an information charging that defendant jointly with one Lipschitz did in the city of St. Louis, on the 30th of March, 1907, feloniously buy, receive, and have 10 bars of new copper metal of the value of $50 of the goods and chattels of the Standard Smelting Company, a corporation, then lately before feloniously stolen from said Standard Smelting Company, then and there well knowing the same to have been feloniously stolen, etc. The defendants were arraigned on May 8, 1907, and put upon their joint trial on the same day. They were each convicted, and their punishment assessed at two years in the penitentiary. On the same day a motion for new trial was filed by defendants, which was afterwards overruled, and a motion in arrest was also filed and overruled, and the defendants were each separately sentenced to the penitentiary. The defendant Shapiro alone filed a bill of exceptions and perfected his appeal to this court.

The evidence on the part of the state tended to show: That the Standard Smelting Company was a Missouri corporation with its place of business at No. 948 Chouteau avenue in the city of St. Louis, at which place it kept scrap metals of all kinds and also ingot metals. That on March 29, 1907, there were ingots of brass in the building near a door opening upon an alley, and on the following morning 11 ingots of brass were missing, weighing about 18 or 20 pounds each, and this missing brass was never recovered. Mr. G. W. Hess, one of the owners of this business, testified that on the night of the 29th of March, 1907, they did not have on hand any copper metal. He was positive that the metal stolen from his place of business was brass. He testified: That copper is original metal. It is composed of copper ore smelted. There was no such original metal as brass. That in the business world copper and brass are commonly known as entirely separate and distinct articles in a commercial sense, and the same is true in the arts and sciences. That copper is a basic metal, and brass is a compound, made from various elements, to wit, of copper, tin, zinc, and lead. After Mr. Hess had so testified, the defendant objected to any further evidence under the information, on the ground that the charge was for receiving stolen copper knowing it to be stolen, whereas, the proof had demonstrated that the ingots that were stolen were brass. This objection was overruled, and defendant duly excepted. The state then introduced another witness, one Harry Flannery, a boy about 16 years old, who testified: That on March 30th he had a transaction with the defendant about copper. That he (witness) and another boy, Eugene Tross, had broken into the foundry of the Standard Smelting Company and stolen 10 bars of copper from that company about 10 o'clock at night and hid the same in an ash pile in an alley near Twelfth street and Chouteau avenue. That he went to defendant Shapiro's house the next morning, March 30th, and told him he had some copper, and if he had a wagon they could go down and get it. Defendant said he had no wagon at that time, but he would try and find one. They left the house and went up town, nothing having been said about the price he was to receive for the copper, and met the other defendant, Lipschitz, who had a horse and wagon. The defendant had some private conversation with Lipschitz out of the hearing of the witness, who said he saw defendant hand Lipschitz a yellow-back bill, which appeared to the witness to be a $20 bill. That during this time they were trading for a horse, which trade was finally consummated, and defendant then told Lipschitz to go with the witness, and the latter and the witness got on a wagon and rode to the place where the copper was said to have been concealed, and there the witness, with two other boys, Eugene Tross and John O'Brien, passed 10 bars of copper to Lipschitz, who covered it with rags as he placed it in the wagon, and, after giving witness $20, drove off. Over the objection of the defendant, Flannery also testified that, about three weeks before that time, he had sold defendant one bar of copper for $2 which witness had stolen from the Standard Smelting Company, and he told the defendant at the time that he got it at the Standard Smelting Company's place. The defendant told him to go back and get some more and defendant would buy it at the same price, giving witness his address on a card, which witness threw away. On cross-examination, Flannery stated: That he was arrested some time after this transaction, and that he had stoutly denied all knowledge of the alleged theft, and, when confronted with defendant and Lipschitz in the police office, maintained that he had never seen them before; that he had never implicated the defendant in the transaction in any way until after he had a talk in the jail with one Red King, a prisoner in the jail, after which he was taken from the jail to the office of the assistant prosecuting attorney, and there had made statements which led to this charge against the defendant. Eugene Tross also testified that he had helped Flannery steal copper from the Standard Smelting Company's place and saw a wagon loaded with the bars and afterwards received $10 from Flannery. John O'Brien testified that he helped to load the wagon and saw Flannery ride away with Lipschitz.

At the close of the state's evidence, the defendant requested an instruction for acquittal, which was refused and exceptions saved. On the part of the defendant, there was evidence tending to show: That he was a man of good character and also evidence...