State v. Speritus

• Citation: 90 S.W. 459,191 Mo. 24
• Parties: STATE v. SPERITUS.
• Decision Date: 21 November 1905
• Court: United States State Supreme Court of Missouri

90 S.W. 459

191 Mo. 24

STATE v. SPERITUS.

Supreme Court of Missouri, Division No. 2.

November 21, 1905.

1. CRIMINAL LAW — APPEAL — AFFIDAVIT.

The filing of an affidavit for an appeal in the circuit court by accused is not a prerequisite to his right to prosecute the appeal.

2. WITNESSES — CHARACTER — REBUTTAL.

Where, in a prosecution for burglary and larceny, defendant testified in his own behalf and stated that a witness for the state worked for him some time before the alleged offense and that he ascertained that the witness had been stealing from him, whereupon he discharged him, such evidence constituted an assault on the character of the witness, entitling the state in rebuttal to introduce evidence that he had a good reputation for honesty, though it failed to object or move to strike out the evidence attacking the witness as immaterial.

3. BURGLARY — LARCENY — INSTRUCTIONS — INTENT.

Where, in a prosecution for burglary and larceny, the court charged that, if defendant unlawfully and forcibly did break and enter into the building of G. "with the intent to steal therein," and the succeeding instruction declared that if the jury believed and found that defendant unlawfully and forcibly both broke and entered the building of G., as defined in the first instruction, and there took the property alleged, and did so with the intent to fraudulently convert the same to his own use, etc., the second instruction was not objectionable for failure to require the "taking," apart from the conversion, to have been without the consent of the owner of the property.

4. LARCENY — CONSENT OF OWNER.

In a prosecution for larceny, an instruction that if defendant took and carried away the property in question, or any part of it, with the "intent" to fraudulently convert the same to his own use and to permanently deprive the owner thereof without his consent, defendant would be guilty, was not objectionable for failure to require that the taking should have been with a felonious intent to deprive the owner of the property without his consent.

5. SAME — RECENT POSSESSION — PRESUMPTIONS.

In a prosecution for larceny, it was not error to refuse to charge that the possession of stolen property by defendant raised a presumption that he either had stolen the property or had received it from another knowing it to have been stolen.

6. INFORMATION — RIGHT TO SIGN.

The assistant circuit attorney of the city of St. Louis is authorized to sign informations by Rev. St. 1899, § 4960, declaring that it is his duty to "aid generally" in the performance of the same duties as are by law enjoined upon a prosecuting attorney, and declaring that he shall be subject to the same fines and penalties for misdemeanors in office and neglect of duty.

7. CRIMINAL LAW — NEW TRIAL — NEWLY DISCOVERED EVIDENCE.

Defendant was convicted of burglary and larceny of certain wagons and harness, principally by the testimony of V., who testified that defendant came to him and wanted to store a wagon and to employ him to go out into the country and procure the same, having admitted that it was stolen. On an application for a new trial defendant produced affidavits that V. had stated to the affiants that defendant had nothing to do with the wagon as he had testified, that he (V.) was out hunting and found the wagon lying in the ditch, and that certain men authorized him to sell the wagon, which he tried to do by offering it to defendant, and that what he told defendant about the wagon was all that defendant knew concerning it; also that C. offered to sell another a wagon at about the same time, all of which information came to defendant after the trial, and could not by due diligence have obtained by him before. Held, that such newly-discovered evidence was not necessarily impeaching, and was of such a character as to require a new trial.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Morris Speritus was convicted of burglary and larceny, and he appeals. Reversed.

Thos. B. Harvey, for appellant. The Attorney General and Rush O. Lake, for the State.

BURGESS, P. J.

On the 20th day of April, 1904, there was filed an information in the office of the clerk of the circuit court of the city of St. Louis by W. Scott Hancock, assistant circuit attorney of said city, under his oath of office, charging the defendant with burglary in the second degree and larceny. Upon trial had, defendant was convicted of both burglary and larceny and his punishment fixed at three years' imprisonment in the penitentiary for the burglary, and two years for the larceny. After unavailing motions for new trial and in arrest of judgment, defendant appeals.

The facts, briefly stated, are that William A. Grolock kept a vehicle and harness establishment at 915 North Broadway, in the city of St. Louis, which was closed on Saturday evening, January 30, 1904, but upon the following Monday morning a rear door was found open, a glass skylight broken, and a milk wagon and 16 sets of single harness missing from the store. Reuben Vaughn, a witness for the state, after testifying that he knew the defendant, proceeded as follows: "Well, he — the way it come up — he asked me whether I had a stable shed at my house to conceal a wagon, or put a wagon in, and I told him no, I had no shed at my house that would do for a wagon because I had no shed at all, and he told me he has got a good wagon he wants to put in a shed, and he would be willing to pay for it if he knew some one that had a shed, and I asked him what he would be willing to pay for some one to keep the wagon for him, thinking he wanted it kept out of the weather, and he said he wanted to pay $10 to keep it for a month, and I thought that was a good price, and I told him I thought I could find a good place to keep the wagon out of the weather, and I suggested, then, my father's as being a good place to put the rig, as he had plenty of room out there, and I told him if he would be willing to pay $10 I would go out and see my father-in-law — see if my father-in-law would keep the wagon for $10 a month, because I thought I would get him to keep it cheaper and keep the balance myself. And he says, `Go and see him right away,' and I says to him, `Where is the rig?' and he says he's got it out on the road between here and East St. Louis, and I told him — I says, `Is it a stolen rig?' and he says, `Yes, the rig is stolen, but there ain't no way on earth to get in trouble about it,' and I asked him what kind of wagon it was, and he said a great big delivery wagon with a top on it, and I told him I didn't know whether he had room for a wagon with a top on it, because he had no wagon with a top on, and he says, `The top can be taken off.' He says, `I don't want you to take the top.' He says, `I will tell you where the rig is, and if you will go out there and get the running gear of that rig for me I will give you $10 to get it and bring it to town and take it out to your father-in-law's, and I will pay him for keeping it,' and I told him, I says, `How will I get the running gear to town?' and he says, `I will give you a monkey wrench and you go out there; there is only four or five bolts you have to take off, and the top will come off,' and I told him `All right,' and I says, `I will go out and see my father-in-law,' and he says, `You can then take your gun and dog and go out like you are hunting, and walk up to the rig and look at it, and, if there ain't nobody around, you can take the bolts off and the top will fall down the hill;' and I told him all right, and I says, `You will have to give me car fare to go out to my father-in-law's,' and he gave me 10 cents. And I had read an account in one of the St. Louis papers about a week, or maybe two weeks previous to that, about a rubber-tired rig and horse being stolen over here in St. Louis, and I kind of suspected that might be the rig, and I went back and asked him, `What about a wagon to bring that home on,' and he told me I could hire a wagon and he would pay me for the hire. I told him, `Can you give me one of your horses?' (he had three of his own then), and he says, `No, if I give you one of my horses that will be suspicious right away, and I says, `Is that a rubbertired rig?' and he says, `No;' and I went to the police headquarters at Belleville and asked them if they had a description of a rig that had been stolen in St. Louis." The testimony of witness Vaughn was corroborated by the testimony of the police officers of both Belleville and St. Louis, in so far as the recovery of the wagon was concerned, and its location in the woods. The defense was an alibi, in support of which defendant offered evidence which tended to show that from Saturday, January 30th, to Monday, February 1st, he was in Belleville and could not have been in St. Louis, the scene of the burglary. Some witnesses also testified that they had overheard a conversation between Vaughn and defendant on February 2d, when, instead of defendant telling Vaughn about a wagon, Vaughn was trying to sell defendant, for the sum of $10, a covered wagon which he claimed to have somewhere.

The court gave the following instructions:

"The state of Missouri, by the information in this case which was filed in this court on the 20th day of April, 1904, charges the defendant with the offense of burglary in the second degree and larceny. The defendant pleads not guilty; and upon the question of his guilt or innocence the court instructs you as follows:

"(1) If, upon consideration of all the evidence in the case, in the light of the court's instructions, you believe and find from the evidence that at the city of St. Louis and state of Missouri, on or about the 31st day of January, 1904, the defendant, Morris Speritus, unlawfully and forcibly did break and enter into the store, shop, and building of W. A. Grolock with the intent to steal therein, and that in said store, shop, and building certain goods, wares, and personal...