State v. Slay, 51671

• Decision Date: 10 October 1966
• Docket Number: No. 2,No. 51671,51671,2
• Citation: 406 S.W.2d 575
• Parties: STATE of Missouri, Respondent, v. Herbert SLAY, Appellant
• Court: Missouri Supreme Court

Page 575

406 S.W.2d 575

STATE of Missouri, Respondent, v. Herbert SLAY, Appellant.

No. 51671.

Supreme Court of Missouri, Division No. 2.

Oct. 10, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, Stanley D. Rostov, Special Asst. Atty. Gen., Kansas City, for respondent.

John D. Hasler, Robert J. O'Hanlon, St. Louis, for appellant.

EAGER, Presiding Judge.

Defendant was found guilty by a jury of tampering with a motor vehicle by removing the front bumper and hood without permission of the owner. Section 560.175, RSMo 1959, V.A.M.S. By an information substituted for the original indictment he was also charged with a prior conviction in the State of Mississippi for having received stolen property, and with imprisonment therefor. The trial court found from evidence offered that defendant had been so convicted and imprisoned, and it assessed his punishment at a term of five years. He was so sentenced after a timely motion for new trial was overruled.

Some of the points raised involve the evidence to such an extent that we are required to make a rather detailed recital. From the State's evidence the following facts reasonably appeared. One John Nicoll of Elmhurst, Illinois, owned a 1964 white Chrysler hardtop, purchased new in July, 1964. About 9:00 p.m. on Friday, August 7, 1964, he parked it in the parking area of the Diplomat Motel on Kingshighway in the City of St. Louis. Early the next afternoon, Saturday, he found that it had been stolen and notified the police. It bore an Illinois State license plate and an Elmhurst city sticker No. 1018. When it was redelivered to him in Illinois several days later, the front bumper was on the back seat, the hood was loose, the left front fender was loose and certain other appurtenances, including the license plate, were gone.

At 12:05 a.m. on August 10, 1964, two uniformed officers of the St. Louis Police Department drove through the alley which passed at the rear of 3967 Evans Street; in a garage open to the alley at that location they saw one car, which one of them described as a Nash; at 1:48 a.m. they passed that garage again and saw a 1964 white hardtop Chrysler standing beside the other car with its hood and humper removed, tools on the floor around the front of the Chrysler, and a lighted flashlight on the floor; the hood and bumper were in the garage. They saw no one in the garage at that time. The officers parked their car down the alley and took up positions from which they could watch the garage. In about fifteen minutes defendant walked down the alley to the garage, entered it, walked to the side of the Chrysler, picked up a tool and began to work on a front fender or, as one stated, 'began to disassemble' the fender; at the time he was 'slightly up under the fender apparently dismounting the bolt.' One officer testified that he heard a 'ratchet' sound, and the other that he heard a 'clanking of metal.' There was no light in the garage except the flashlight and such light as came in from the lights in the alley. The officers entered and placed defendant under arrest. The Elmhurst sticker was on the car, but it carried a Missouri State license plate No. MS 3292. The Police Bureau of Identification was called and the hood and bumper were examined for fingerprints; various photographs were taken. An expert from the Police Identification Bureau testified that two fingerprints lifted from the hood of the Chrysler were those of the defendant. The car was towed to a lot used by the police for storage.

Defendant, 52 years of age, had operated one or more automobile salvage yards in St. Louis for about 20 years; one of these was close to the above address. He bought and sold parts of cars and also cars. He testified in his own defense. In substance, his testimony was: that about six or seven days prior to his arrest he had employed one William Wright as a night watchman for his salvage yard; that Wright said he was a distant relative and wanted to borrow some money on account of an accident; that he let Wright live in an apartment at 3967 Evans which he had previously rented for his daughter and her husband (who had then gone back to Milwaukee); that on the night in question, possibly about 11:30 or 12:00, he went to his 'office' for his keys, expecting to find Wright there; when he did not find him, he went over to the Evans address where Wright was supposed to be living; he did so by entering the alley at the rear; that he saw the flashlight burning in the garage, called for Wright and got no answer, saw the two cars, and saw the bumper and hood lying in the other car which he said was his; that he took the hood out and set it up against the wall, looked around, and went to the front of the house where he knocked on the door, still trying to find Wright. According to his testimony it was there that he was arrested; he admitted having picked up a tool while in the garage, stated that the tools were his and that his employees had access to them, and that they used the tools in the salvage yard. He denied making various statements to the officers concerning the Chrysler, denied stealing or tampering with it and, in essence, denied all knowledge of the circumstances until he came on the scene as related. He further testified: that Wright came and talked with him briefly while he was at the police station; that he had bought a 1957 DeSoto from one Jones with the MS 3292 Missouri license plate ¹ on it, but he stated that he had not used the plate, and merely let the car stand on the street until Jones finally got a ticket on it; that when he got out on bond he went back to 3967 Evans, broke the lock on the door, and found two shirts and a pair of trousers which belonged to Wright; that he also found a wallet on the floor of the garage near where the right front wheel of the Chrysler had been; that this wallet belonged to Wright and had some of his cards in it; that he had not located Wright, and that some of his money and a check were missing from his cash register, for which he blamed Wright.

In rebuttal the prior owner of the 1957 DeSoto, Percy Jones, testified that he sold and delivered the car to defendant with the Missouri license plate on it, that he later called defendant and asked him to destroy it, that he subsequently got a parking ticket on that car which he took to the defendant, and that the latter again agreed to destroy the plate and to pay the ticket. The police officers, recalled in rebuttal, testified that they saw defendant at the fender of the Chrysler and arrested him there, that they never saw him at the door of the house, that when they questioned him he stated that an 'unknown white male' (defendant being colored) had brought the car to him telling him that if he dismantled certain parts he could have the rest of it, and that he asked the man no questions. The officers also testified that they saw no wallet in the garage, although Officer Searcy made an inspection with a light at the time of the arrest, and again made an inspection after the car was taken out.

Defendant was represented at the trial by privately employed counsel; after the appeal was taken other counsel stated in correspondence that he had been employed. No brief has been filed on defendant's behalf. There is no indication in our record of indigency, no order was made permitting this appeal in forma pauperis, and defendant is on bond pending appeal. The recent decision in Bosler v. Swenson (CA 8), 363 F.2d 154 (July 14, 1966) is, therefore, inapplicable and we proceed to consider on the merits the assignments of the motion for new trial in accordance with our past practice.

We shall not consider those assignments in the order in which they appear; some will not require substantial consideration. The assignment that the evidence was insufficient and that a verdict of not guilty...