State v. Sinovich

• Citation: 46 S.W.2d 877,329 Mo. 909
• Decision Date: 17 February 1932
• Docket Number: 31379
• Parties: The State v. Joseph Sinovich, Appellant
• Court: United States State Supreme Court of Missouri

46 S.W.2d 877

329 Mo. 909

The State v. Joseph Sinovich, Appellant

No. 31379

Supreme Court of Missouri

February 17, 1932

Appeal from Circuit Court of St. Louis County; Hon. Jerry Mulloy, Judge.

Verdict and judgment of guilty affirmed.

Bass & Bass for appellant.

(1) The evidence introduced by the State in support of the indictment was insufficient to sustain the verdict. State v McMurphy, 324 Mo. 854; State v. Prichett, 39 S.W.2d 794; State v. Perkins, 18 S.W.2d 6; State v. Matticker, 22 S.W.2d 647; State v. Archer, 6 S.W.2d 912; State v. Tracey, 284 Mo. 619; State v. Scott, 177 Mo. 665; State v. Ruckman, 253 Mo. 487; State v. Gordon, 199 Mo. 561; State v Capps, 311 Mo. 683; State v. Francis, 199 Mo 671; State v. Buckley, 274 S.W. 74; State v. Hollis, 284 Mo. 627; State v. Nagle, 32 S.W.2d 596. (a) The evidence on part of the State did not connect the defendant with the commission of the offense. In order to convict the defendant it was necessary to connect him with the commission of the crime. State v. Nave, 283 Mo. 35. (b) The evidence on part of the State did not overcome the presumption of innocence that existed in favor of the defendant throughout the trial. State v. Scott, 177 Mo. 665; State v. Capps, 311 Mo. 683; State v. Francis, 199 Mo. 671; State v. Buckley, 274 Mo. 74. (c) The evidence on part of the State did not even raise a strong suspicion of defendant's guilt, and even though the evidence had shown a strong suspicion or probability of guilt that would have been insufficient to sustain the verdict. State v. Scott, 177 Mo. 665; State v. Gordon, 199 Mo. 561; State v. McMurphy, 324 Mo. 854; State v. Pritchett, 39 S.W.2d 794; State v. Perkins, 18 S.W.2d 6; State v. Matticker, 22 S.W.2d 647; State v. Archer, 6 S.W.2d 912; State v. Capps, 311 Mo. 683; State v. Hollis, 284 Mo. 627. (d) The evidence in support of the verdict is entirely circumstantial, and even if it were all admitted to be true it is not inconsistent with defendant's innocence of the crime charged. State v. Tracy, 284 Mo. 619; State v. Capps, 311 Mo. 685; State v. Ruckman, 253 Mo. 501. (e) To justify the verdict of the jury herein, the evidence should have been so clear and conclusive as to generate in their minds so strong a belief of guilt as to exclude every reasonable doubt of defendant's innocence. The evidence for the State falls far short of this. State v. Duncan, 317 Mo. 456; State v. Buckley, 274 S.W. 74. (f) In a case depending upon circumstantial evidence a case may not be made by building an inference upon an inference. State v. McMurphy, 324 Mo. 854; State v. Matticker, 22 S.W.2d 647; State v. Hollis, 284 Mo. 627; State v. Lackland, 136 Mo. 26; State v. Capps, 311 Mo. 683; State v. Ross, 300 S.W. (Mo. Sup.) 717; State v. Kurtz, 295 S.W. (Mo. Sup.) 747; State v. Zeikle, 296 S.W. (Mo. Sup.) 117; State v. Knight, 296 S.W. (Mo. Sup.) 367.

Stratton Shartel, Attorney-General, and Don Purteet, Assistant Attorney-General, for respondent.

If there is any substantial evidence of each and every element of the offense, then the court committed no error in sending the case to the jury. The indictment was drawn under the provisions of Section 4021, R. S. 1929. The elements of the offense charged consist of the willful and unlawful forcible seizing, etc., any person with the intent to cause such person to be secretly confined in the State of Missouri against his will. Sec. 4021, R. S. 1929. The offense is complete when the person is forcibly seized with the intent to secretly confine in this State against the will. State v. Higgs (Mo. Sup.), 29 S.W.2d 75. The offense arises when the person is so seized with the intent to cause him to be secretly confined within the State. State v. Higgs, supra. Under the charge in the case at bar, it appears that the intent must be present at the time of the unlawful seizure. State v. Higgs, supra. That intent may be inferred from defendant's acts. State v. Higgs, supra. It is elementary law in this State, where a person conspires with others to commit a crime, such person is clearly responsible for the commission of the crime, whether present and participating in its actual perpetration. State v. Walker, 98 Mo. 95. An inference that an established fact must have existed in the immediate past may be drawn from the circumstances and facts of the present. State v. Janes, 318 Mo. 529. "While the presumption of the continued existence of a proven fact does not run backward, yet, the surrounding circumstances may be such as to justify the inference that an established fact must have existed at a certain time in the immediate past." 22 C. J. 92; State v. Janes, supra. The rule is that a conspiracy may be shown by acts and circumstances indicating a joint purpose between defendant and other parties to aid each other in the commission of a crime. State v. Thompson, 293 Mo. 120.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

The appellant, Joseph Sinovich, John Pepe and Claude Gillman were jointly indicted, by the grand jury of St. Louis County, Missouri, at the January term, 1930, with having kidnapped and secretly confined one Jacob Hoffman. Joseph Sinovich, appellant, was granted a severance. On a trial, before a jury, he was found guilty as charged and his punishment fixed at two years imprisonment in the penitentiary. A motion for new trial was filed, overruled by the court and defendant sentenced in accordance with the verdict of the jury. From this judgment defendant has perfected his appeal to this court.

Defendant did not offer any evidence in the case. The testimony adduced by the State reveals the following state of facts: Jacob Hoffman, the person kidnapped, was a merchant engaged in the cigar business at 112 North Broadway, in the city of St Louis, Missouri. On the evening of February 18, 1930, at about seven o'clock, while answering a telephone call in his office, on the second floor of the building, three men entered, and after robbing him of his money, blindfolded Hoffman, placed him in a car and drove away. Hoffman stated that each of the three men had an automatic pistol; that they had their hats on and handkerchiefs or rags tied over the lower part of their faces. Hoffman testified that to his best judgment the men drove south for about one-half hour, then he was taken into a building and kept there all night and until the following evening. It seemed to the witness that four men stayed with him the greater part of that night. The following evening Hoffman was taken in an automobile, and, after being taken for a drive lasting about a half hour, was placed in another building, where he remained all of that night and the next day. That night he was again moved. This time the ride lasted an hour, and Hoffman was taken to the home of defendant, Sinovich, where he remained all night and up to ten or eleven o'clock the next morning, when the police discovered them. Hoffman was released and Gillman and Pepe were taken in custody by the police. During all of this time Hoffman was blindfolded and did not see anyone, neither did he know where he had been taken. Hoffman testified that defendant, Sinovich, in his best judgment, was not one of the three men who entered his place of business on Broadway. The defendant's home is located on Bayless road in St. Louis County, south of the city of St. Louis. It consists of a large brick house with several acres of ground belonging to and surrounding it. It has a number of outbuildings, a dance hall and a baseball ground near it. It is situated about one hundred fifty feet from the main road, with a lot of shrubbery and a driveway leading to the house. It seemed to witness, Hoffman, that when the men arrived at the last mentioned place he was first taken to one of the out buildings, then to the basement of the main building. The basement, where Hoffman was found, is divided by a partition wall with an opening in it about the size of an ordinary door. Hoffman was placed in one of these compartments. To darken the basement heavy paper had been placed over the window. There was an entrance from the outside to the basement, and also a stairway and entrance connecting the rooms upstairs with the basement. Hoffman heard frequent whispering going on in the basement during the night. He also heard a radio and people moving about and talking upstairs. The next morning he was served hot coffee, ham and eggs. When the officers arrived, they found Pepe, Gillman and Hoffman in the basement. The Sheriff of St. Louis County gained entrance to the basement by kicking open the door. The officers found a number of barrels and boxes in the basement. On top of one of the barrels they found three, forty-five automatic revolvers fully loaded. The officers also found three overcoats on one of the barrels, two of which belonged to defendant Sinovich, and a third which was not identified. Dishes were found, which gave evidence that eggs had recently been served on them. The officers made a search of the Sinovich home and found Mrs. Sinovich and a seventeen-year-old son, but did not find the defendant. Hoffman also testified that he was forcibly taken from his place of business and kept in hiding against his will. A number of police officers testified that defendant, after his arrest, made substantially the following statements: that Pepe and Gillman drove into his yard on the evening of February 20th, while he, Sinovich, was playing cards in his clubhouse with a man named Pinkerton; that he went out to meet the men, whom he recognized as Pepe and Gillman, and they asked permission to remain in one of his outbuildings for the night, because they were being pursued by a prohibition agent named Dillon, and wished to hide and avoid arrest; that he saw no more of the men...