State v. Simenson

• Decision Date: 04 January 1915
• Docket Number: No. 18396.,18396.
• Citation: 172 S.W. 601
• Parties: STATE v. SIMENSON.
• Court: Missouri Supreme Court

172 S.W. 601

STATE v. SIMENSON.

No. 18396.

Supreme Court of Missouri, Division No. 2.

January 4, 1915.

1. CRIMINAL LAW (§ 755½) — INSTRUCTIONS — COMMENT ON EVIDENCE — STATEMENTS OF ACCUSED.

An instruction that, if the jury found from the evidence that the defendant made certain statements in relation to the offense charged, they must consider such statements together, that defendant is entitled to the benefit of any such statements if true, and the state is entitled to the benefit of anything defendant said against himself, that what he said against himself is presumed to be true unless negatived by the evidence, but it is for the jury to say whether what he said for himself is true or not under the evidence, and that the jury should consider, from all the evidence in the case, how much of the statements of defendant proved by the state they deemed true, was not erroneous as a comment on the evidence calling attention especially to defendant's testimony, since the jury could not fail to understand that the statements of defendant referred to were statements made out of court and not his testimony at the trial.

2. CRIMINAL LAW (§ 781) — INSTRUCTIONS — STATEMENTS OF ACCUSED.

The instruction was correct.

3. CRIMINAL LAW (§ 781) — INSTRUCTIONS — STATEMENTS OF ACCUSED.

An instruction of that kind need not require the jury to find that the statements were voluntary, even where defendant is entitled to an instruction submitting that question to the jury.

4. CRIMINAL LAW (§ 1064) — APPEAL — PRESENTING QUESTIONS IN LOWER COURT — MOTION FOR NEW TRIAL — INSTRUCTIONS.

The failure of the court to require the jury to find that extrajudicial statements by the accused were voluntarily made cannot be considered on appeal, where it was not raised on a motion for a new trial.

5. CRIMINAL LAW (§ 951) — NEW TRIAL — MOTION — TIME FOR FILING — SUPPLEMENTARY MOTION.

Under Rev. St. 1909, § 5285, requiring a motion for new trial to be made within four days after verdict, a supplementary motion filed after that time presenting an additional ground for a new trial is invalid.

6. CRIMINAL LAW (§ 824) — TRIAL — REQUEST FOR INSTRUCTIONS — NECESSITY — COLLATERAL QUESTION.

The question whether extrajudicial statements of defendant were voluntarily made is a collateral one, upon which it is not necessary for the court to instruct the jury unless so requested.

7. RECEIVING STOLEN GOODS (§ 9) — VERDICT — SUFFICIENCY — "TO BE STOLEN" — "TO HAVE BEEN STOLEN."

In a prosecution for receiving stolen goods, a verdict which states that the defendant received the goods knowing them "to be stolen," instead of "to have been stolen," is sufficient, since there is no legal difference between the two expressions.

Appeal from St. Louis Circuit Court; Wm. T. Jones, Judge.

Max L. Simenson was convicted of receiving stolen goods, and he appeals. Affirmed.

Defendant was convicted of receiving stolen goods, knowing that they had been stolen, and his punishment was fixed by the jury at two years in the penitentiary.

During the night of January 10, 1913, about 56 pairs of trousers and 36 coats were stolen from the factory of the Schwab Clothing Company at Broadway and Hickory streets in St. Louis. About the 3d or 4th of February following, those goods were found in the place of business of the defendant near Broadway and Choteau avenue. The defendant was a merchant tailor, with several men in his employ. When found, most of the goods were out of sight; some were hidden in an old telescope valise; some were in the bottom of a large showcase covered with cloths; a few were hanging in sight of the casual observer.

Officer Archey testified that when he went to defendant's place of business he told defendant that he (witness) had information that he (defendant) had there in his place some goods stolen from the Schwab Clothing Company, and that defendant answered that he did not have any made-up clothes of any kind; did not handle suits. He further testified that upon making search of defendant's place the goods were found, and that he then asked defendant where he got the goods, to which defendant answered that some young fellow came round and he got them off of him; that he (defendant) said that he thought the man owned the goods and he bought them. Defendant was then placed under arrest.

Officer Amrein testified that defendant, when asked whether he had such goods, said that he did not have them, that his was a repair shop, and that he did not have any suits of clothing at all.

Edward Allen, a tinner, testified that he went into defendant's place in January, 1913, in the morning, and that there was a man there with a box of clothing which he sold to the defendant, giving the defendant a piece of white paper, and that defendant paid the man some money.

Defendant testified that he had been a merchant tailor in St. Louis 14 years and in the clothing business 2 years, a kind of a jobber. He testified that he had bought probably a dozen lots of clothing at different times; that on January 11, 1913, he bought of B. Shrinder the goods that were found in his shop; that Shrinder had a tailor shop at Seventh and Franklin, third floor, and made clothes for defendant for two or three years. He testified that he did not know what had become of Shrinder. The state did not introduce any evidence as to Shrinder or his business.

Mr. Lavin testified that about three years before the trial he sold defendant a lot of pants amounting to $225.

Defendant testified that he got a bill of sale for the goods bought by him from Shrinder. That bill showed that he paid $60 for the goods. An expert witness for the state testified that the goods found in defendant's possession were worth $212.

It was admitted by counsel for defendant at the trial that the property which was exhibited at the trial was the property of the Schwab Clothing Company.

There was some evidence that the reputation of defendant for morality was good.

The ninth instruction for the state was as follows:

"If you believe and find from the evidence that the defendant made any statement or statements in relation to the offenses charged in the information after such offense is alleged to have been committed, you must consider such...