State v. Smith

• Citation: 157 S.W. 319,250 Mo. 350
• Parties: THE STATE v. THOMAS B. SMITH, Appellant
• Decision Date: 20 May 1913
• Court: United States State Supreme Court of Missouri

157 S.W. 319

250 Mo. 350

THE STATE v. THOMAS B. SMITH, Appellant

Supreme Court of Missouri, Second Division

May 20, 1913

Appeal from Jackson Criminal Court. -- Hon. Edward E. Porterfield Judge.

Affirmed.

R. B Kirwan for appellant.

(1) The information filed herein was insufficient in that it was illegal and void. State v. Fink, 186 Mo. 58; State v. Lackey, 230 Mo. 714; State v Pollack, 105 Mo.App. 278; State v. Stowe, 132 Mo. 208; State v. Barbee, 136 Mo. 440. (2) The court erred in allowing the prosecuting attorney to ask witness if he had not approached another party to bribe the prosecuting attorney. This was highly prejudicial to the appellant and tended to prejudice the jury against him. State v. Conway, 241 Mo. 280; State v. Woolard, 111 Mo. 255; State v. Bobbst, 131 Mo. 338; State v. Jackson, 95 Mo. 652; State v. McGrath, 228 Mo. 428; State v. Clancy, 225 Mo. 659; State v. Lentz, 184 Mo. 243; State v. Moxley, 102 Mo. 393; State v. Shipley, 174 Mo. 517; State v. Hyde, 234 Mo. 256; State v. Fisher, 124 Mo. 460. (3) The prosecuting attorney's conduct and demeanor throughout the trial, his slurring remarks, his referring to appellant herein as a fugitive from justice, that he consorted and lived with a lewd woman in Atchison, Kan., all these tended to prejudice the jury against the rights of this appellant. (4) The evidence submitted to the jury showed that Wedow did not commit larceny but that he committed the crime of embezzlement. Sec. 4554, R.S. 1909; State v. Shermert, 55 Mo. 86; State v. Ware, 62 Mo. 602; State v. Pollock, 105 Mo.App. 277; State v. Fink, 186 Mo. 60; State v. Casey, 207 Mo. 5; State v. Williams, 35 Mo. 231. (5) The court erred in admitting over the objections of the defendant, incompetent, irrelevant, immaterial and prejudicial testimony offered by the State and in excluding competent, relevant and material testimony offered by the defendant. State v. Hyde, 234 Mo. 225; State v. Spaugh, 200 Mo. 594; State v. Collins, 181 Mo. 261; State v. Spray, 174 Mo. 576; State v. Bailey, 190 Mo. 280; State v. Goetz, 34 Mo. 89; State v. Boatright, 182 Mo. 51; State v. Parker, 96 Mo. 382; State v. Brown, 188 Mo. 464; People v. Molineux, 168 N.Y. 26, 62 L. R. A. 240; Shaffner v. Commonwealth, 72 Penn. 60. (6) Instruction one given on behalf of the State was erroneous. State v. Witt, 9 Mo. 671; State v. Smith, 37 Mo. 64; State v. Rutherford, 152 Mo. 131; State v. Miller, 159 Mo. 118; State v. Littrell, 170 Mo. 15; State v. Walker, 174 Mo. 523; State v. Fink, 186 Mo. 58; State v. Speritus, 191 Mo. 24; State v. Weatherman, 202 Mo. 10; State v. Richmond, 228 Mo. 366; State v. Sweeten, 75 Mo.App. 134; State v. Pollock, 105 Mo.App. 278. (7) Instruction sixteen offered by defendant ought to have been given. State v. Ghahn, 97 Mo. 693; State v. Motley, 102 Mo. 390; State v. Hendricks, 172 Mo. 668; Commonwealth v. Gray, 4 Gray, 29; Heldt v. State, 20 Neb. 494.

John T. Barker, Attorney-General, for the State; Paul P. Prosser, of counsel.

(1) The information is in substantial compliance with forms which have received the express approval of this court, and contains every element necessary to charge the offense of knowingly receiving stolen goods. Under the provisions of the statute the gravamen of the offense is receiving stolen goods, knowing the same to have been stolen. The crime denounced by the statute is a substantive offense, and it is immaterial who stole the goods, or from whom they were received, provided they still retain the character of stolen goods. It follows that the information need not state the name of the thief or the person from whom the stolen goods were received. Sec. 4554, R.S. 1909; State v. Guild, 149 Mo. 374; State v. Fink, 186 Mo. 52; State v. Kosky, 191 Mo. 10; 34 Cyc. 521. (2) The verdict is responsive to the issues raised by the information, is abundantly supported by the evidence and is amply sufficient to sustain the judgment. State v. Richmond, 186 Mo. 83; State v. McGee, 188 Mo. 412; State v. Smith, 190 Mo. 728; State v. King, 194 Mo. 484. (3) This case was tried over innumerable objections on the part of counsel for defendant, most of which were directed to the action of the court in admitting evidence of the receipt of other stolen goods by defendant, at times not remote from and under circumstances connected with the receipt in question, for the purpose of showing guilty knowledge. We fully recognize the general rule that evidence of a distinct crime, entirely disconnected with the offense charged in the information, and having no real tendency to prove the same, is incompetent; but as this court has said, "this well-settled rule has its exceptions equally well-settled." State v. Goetz, 34 Mo. 89; State v. Meyers, 82 Mo. 558; People v. Molineaux, 168 N.Y. 293. As one of the essential ingredients of the offense with which defendant was charged is guilty knowledge, and as the evidence showed a common plan or scheme embracing various receipts of stolen goods, so closely related to the receipt in question that proof of the former tended to establish the latter, this case, also, must be held to come within the exception. State v. Wilson, 143 Mo. 346; State v. Hodges, 144 Mo. 53; State v. Phillips, 160 Mo. 506; State v. Spray, 174 Mo. 582; State v. Hyde, 234 Mo. 225, 34 Cyc. 525. (4) While it is true that specific acts of lawlessness or moral turpitude are not admissible for the purpose of proving a bad reputation, yet defendant had tendered his good character as an issue, and it was entirely proper to question his witnesses in that behalf on cross-examination as to defendant's conduct and their information in regard to important facts in his life, in order to test their truthfulness and to determine the means whereby they had acquired the knowledge upon which their estimate of his character was based. The manner and extent of such cross-examination is a matter largely within the discretion of the trial court. State v. Crow, 107 Mo. 347; State v. McLaughlin, 149 Mo. 33; State v. Parker, 172 Mo. 207; State v. Boyd, 178 Mo. 18; State v. Brown, 181 Mo. 214; State v. Kennedy, 207 Mo. 538. (5) Instruction one required the jury to find every substantive fact charged in the information and declared by the statute (Sec. 4454, R.S. 1909) to constitute the offense for which defendant was on trial, and was therefore unobjectionable. State v. Miller, 93 Mo. 269; State v. Richmond, 186 Mo. 78; State v. Cronin, 189 Mo. 670. We must frankly state that in cases where the verbal statements of the defendant, made casually and in the course of ordinary conversation, form a part of the evidence, and, particularly, where it appears that such statements were made on an occasion more or less remote from the time when they were disclosed, this court has uniformly approved the rule that a cautionary instruction, in the nature of that offered by defendant in the present case, should be given as a corollary to the instruction upon the weight to be attached to such verbal statements. But this court has also held that his rule is not always to be followed, and the present case plainly comes within the exception. The instruction sixteen was not warranted by the evidence, for the reason that defendant's statements "concerning the manner or circumstances attending his possession of the goods mentioned in evidence" were not made "causally" or "in the course of ordinary conversation." State v. Henderson, 186 Mo. 493.

WALKER, J. Brown, P. J., and Faris, J., concur.

OPINION

WALKER, J.

The defendant is charged in an information filed by the prosecuting attorney of Jackson county with receiving stolen goods knowing them to have been stolen from the owner, the Missouri-Pacific Railway Company.

A trial before a jury resulted in a verdict of guilty and the assessment of the punishment at four years' imprisonment in the penitentiary. From this sentence defendant appeals. Pending the appeal a stay of execution was granted upon the filing of a satisfactory bond.

In March, 1910, a manufacturer of cigars at Lima, Ohio, shipped thirty thousand "San Felice" cigars to Sol H. Cohen, Coffeyville, Kan. This shipment was delivered to the Pennsylvania Railroad at Lima for transportation to St. Louis, whence it was routed via the Missouri-Pacific Railway Company to Coffeyville, Kansas. It was duly received at Kansas City, Missouri, on March 17, 1910, in a New York Central car, from which it was checked out to a Missouri-Pacific car, which was the Coffeyville car on that date. The Coffeyville car arrived at its destination March 18, 1910, with the seals intact, but it was discovered by Cohen upon being notified of the arrival of the goods that the shipment was short three cases of cigars. Cohen not being able to secure any trace of same, made a claim therefor to the company for goods lost in transit.

Subsequent investigation disclosed that upon the receipt of this shipment at Kansas City, it was taken in charge by the local freight agent of the company, who had several assistants. The manner in which the shipments were received by the railway company showed that waybills accompanied each shipment, and when a transfer of freight was to be made from one car to another a check clerk was given the waybill for that car, in order to identify the goods and make a record of the transfer. It was the duty of the check clerk to handle the waybills and check out the packages noted thereon; to direct the truck men which packages were to go to the warehouse and which were to be taken to other cars; and in case of a transfer to another car, to which particular car the freight was to go.

At the time in question one of the assistants of the local freight agent was a check clerk named Frank Wedow. As check clerk Wedow had access to the...