State v. Slade
| Decision Date | 12 September 1960 |
| Docket Number | No. 2,No. 47728,47728,2 |
| Citation | 338 S.W.2d 802 |
| Parties | STATE of Missouri, Respondent, v. Otis LeRoy SLADE, Arthur Russell Siade and Kenneth Lee Waller, Appellants |
| Court | Missouri Supreme Court |
Earl E. Roberts, Steelville, for appellants.
John M. Dalton, Atty. Gen., James B. Slusher, Asst. Atty. Gen., for respondent.
The defendants were found guilty of stealing a motor vehicle as jointly charged in an information filed in the Circuit Court of Phelps County and the punishment of each was assessed at imprisonment in the penitentiary for a term of three years. Their joint motion for a new trial was overruled and they were sentenced in accordance with the verdict of the jury. Among other assignments of error is the contention that the evidence was insufficient to make a submissible case and that a judgment of acquittal should have been directed.
All of the defendants were soldiers in the United States Army stationed at Fort Leonard Wood near Rolla, Missouri. The defendants Otis LeRoy Slade and Arthur Russell Slade are brothers. They together with Kenneth Lee Waller are the defendants in the case. Daniel Mackachinis, also a soldier at Fort Leonare Wood, was involved in the occurrence out of which the prosecution arose but was not a defendant in the case. On the afternoon of March 28, 1959, the three defendants and Mackachinis were together in Rolla. At about 3:00 p. m., while riding around town in a 1954 Ford convertible owned by Otis Slade, they went to a used-car lot operated by Thurlo Burks in Rolla where they looked at a 1954 Ford sedan which was test-driven by one of the boys accompanied by a salesman. They left and during the afternoon and evening spent considerable time at a skating rink. About 9:00 p. m., Arthur Slade, driving Otis' car, took Mackachinis to within about a half-block of the used-car lot and let him out. Mackachinis went onto the lot and got the keys out of the 1954 Ford sedan at which they had looked that afternoon. Sometime after 10:00 p. m., when the used-car lot had been closed for the night, Arthur Slade again drove Mackachinis to within a short distance of the used-car lot. Mackachinis again went onto the lot and, using the key he had taken earlier, drove the Ford sedan from the lot, past the place where Arthur Slade was waiting, to a wooded area on a country road about two miles north of Rolla where he concealed it. Arthur Slade, in Otis' car, accompanied Mackachinis to the hiding place and drove him back to Rolla. The defendants and Mackachinis were together for at least portions of the remainder of the evening at the skating rink and at a night club where they stayed until about 1:00 a. m. The defendants and Mackachinis then went in Otis Slade's car to the wooded area where the stolen automobile had been secreted. Mackachinis siphoned the gasoline out of the tank and put it into the Slade car. The Slade brothers took five tires and wheels from the stolen car and Waller removed the radio. Windshield wipers and rear view mirrors were also taken.
Four of the tires and wheels taken from the stolen car were later put on Otis Slade's car in place of his tires which were discarded. The other wheel and tire was secreted in Waller's automobile which was disabled and standing in the back yard of his girlfriend's home. At about 3:00 p. m. the next day the defendants and Mackachinis were arrested. Mackachinis confessed, implicated the others, and testified on behalf of the state. All three of the defendants took the stand and testified in their own behalf.
The principal dispute in the evidence concerns the extent of defendants' knowledge of the theft and their participation in it. Mackachinis testified that, after obtaining the keys from the Ford sedan, he and Arthur Slade went back to the skating rink where Otis Slade and Waller were told that Mackachinis had obtained the key to the Ford sedan and were shown the key. Waller said that he would have to get tools out of his car so that he could get the radio out of the Ford sedan. Mackachinis testified that he, driving the stolen car, followed Arthur Slade out into the country to hide the car, while Arthur claimed Mackachinis led the way. Arthur and Mackachinis drove back to the skating rink in Otis' car where they picked up Otis and later in the evening picked up Waller at his girlfriend's house. Mackachinis further testified that they needed gasoline for use in Otis Slade's car, that they intended to sell one or two of the tires to get money to buy gasoline and were going to put some of the tires on the Slade car. He testified that all three of the defendants knew what was going to be done with the 1954 Ford sedan.
All of the defendants admitted that they took part in stripping the stolen car of its equipment, but Otis Slade and Waller denied that they had previous knowledge that the car had been stolen. Arthur Slade admitted he knew the car was stolen when he saw Mackachinis driving it just after taking it from the lot at about 10:00 p. m. He saw it did not have any license plates and was the same car they had looked at earlier in the day. Otis Slade drove his codefendants and Mackachinis in his automobile to the place where the stolen car was secreted.
The defendants first contend that the court erred in overruling the motion for judgment of acquittal at the conclusion of the state's case and at the conclusion of the entire case. Any error in overruling the motion for judgment of acquittal made at the close of the state's case was waived by the introduction of evidence by the defendants in their own behalf. State v. Archer, Mo., 328 S.W.2d 661, 665; State v. Richardson, Mo., 315 S.W.2d 139, 140; State v. Bledsoe, Mo., 254 S.W.2d 618, 622. Therefore, the sufficiency of the evidence must be determined on the basis of its standing at the conclusion of the entire case.
Where there is substantial evidence in proof of a defendant's guilt, the judging of the credibility of the witnesses and the weight and value to be given their testimony is the jury's province. State v. Ruckman, Mo., 222 S.W.2d 74, 75. In determining the sufficiency of the evidence to sustain a conviction, the appellate court considers as true the evidence favorable to the state and the favorable inferences reasonably to be drawn therefrom; and evidence to the contrary is rejected. State v. Reagan, Mo., 328 S.W.2d 26, 29; State v. Woolsey, Mo., 328 S.W.2d 24, 25.
The automobile of Thurlo Burks was stolen within the meaning of the applicable criminal statutes, Secs. 560.156 and 560.161, subd. 2(2) RSMo Cum.Supp.1957, Laws 1955, p. 507, V.A.M.S. Section 560.156, subd. 1(2) defines the word 'steal' as used in the statute as 'to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing or retaining possession of his property.'
The defendants' principal contention is that there is no evidence that any of them had any part in the actual taking and driving away of the stolen automobile and that no conspiracy was shown within the provisions of Secs. 556.120 RSMo 1949, V.A.M.S. The defendants were charged with stealing an automobile and not with conspiracy which is a separate and independent offense. See 11 Am.Jur., Conspiracy, Sec. 9, p. 549. A person who aids and abets the commission of a criminal offense is guilty as a principal without a showing of conspiracy. Section 556.170 RSMo 1949 V.A.M.S.; State v. Reich, 293 Mo. 415, 239 S.W. 835, 837; State v. Porter, Mo., 199 S.W. 158, 160.
Nor is it necessary to prove that the defendants personally participated in the actual taking and driving away of the stolen car. All persons who act together with a common intent and purpose in the commission of a crime are equally guilty even though they are not personally present at the commission of the offense. State v. Butler, Mo., 310 S.W.2d 952, 957; State v. Lackmann, Mo., 12 S.W.2d 424, 425[4, 5]; State v. Hayes, Mo., 262 S.W. 1034, 1937[8, 9].
While Mackachinis is the one who performed the physical act of removing the car from the owner's premises and driving it to the hiding place, the evidence, both testimonial and circumstantial, is sufficient to show the guilty participation of the defendants in the common plan and purpose. The court did not err in refusing to direct a verdict of acquittal. State v. Wilson, Mo., 286 S.W.2d 756, 758; State v. O'Brien, Mo., 252 S.W.2d 357, 360, certiorari denied 345 U.S. 929, 73 S.Ct. 790, 97 L.Ed. 1359.
The foregoing discussion of the law and the evidence in support of the verdict also disposes of the defendants' contention that there was no evidence to justify the giving of the state's instruction S-4-G, which reads as follows: 'The Court further instructs you that, when two or more persons knowingly act together in the commission of an unlawful act or purpose, then whatever either does in...
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