State v. Stephens
| Decision Date | 25 May 1928 |
| Docket Number | No. 28278.,28278. |
| Citation | 8 S.W.2d 3 |
| Parties | STATE v. STEPHENS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Pettis county; Dimmitt Hoffman, Judge.
Warren Stephens was convicted of grand larceny, and he appeals. Affirmed.
H. K. Bente and C. I. Bennington, both of Sedalia, for appellant.
North T. Gentry, Atty. Gen., and Walter E. Sloat, of Jefferson City, for the State.
The prosecuting attorney of Pettis county, on June 7, 1926, filed a verified information in the circuit court charging defendant and one Ralph Gabariel with grand larceny of automobile parts committed on December 30, 1925. Convicted and sentenced to two years in the penitentiary, defendant appealed.
The evidence on the part of the state warrants the finding that on the night of December 30, 1925, one Barrett, cashier of a bank at Sedalia, parked his Ford coupé in proximity to the Terry Annex, a Sedalia hotel. During the evening it was stolen, and later the same evening recovered on West Sixteenth street in Sedalia, minus the battery and four tires of the value of $115. In addition, a borrowed shotgun lying in the car was taken. In May, 1925, Barrett purchased the battery from John Ross. Barrett failed to identify the battery and the identification of Ross went no further than to show that the battery sold to Barrett, one among thousands of similar make, was manufactured by Ford and marked "5-25," indicating that it was made in May, 1925. Ross stated that on May 20, 1925, he sold one of identical make and marking to Barrett.
William Luther, a Sedalia garage owner, testified that around January 1, 1926, but whether before or after he could not say, but as well as he could remember it was the first of the year, he replaced an old battery in defendant's Ford car with an ordinary Ford battery furnished by defendant without the appearance of being badly worn. He did not look at the date on the battery, and stated that all Ford batteries are similar in appearance.
The Sedalia chief of police testified that he called defendant to his office on January 6, 1926, inquiring about the car he was driving. Defendant informed him the boy had it in the country, but the chief immediately drove to defendant's home, finding his car there. Defendant's wife told him she did not have a key, and he thereupon left an officer in charge of the car, later having it towed in and taken to Boehme's garage. The battery was not changed while in the possession of the police.
Boehme, an automobile dealer, testified that at the instance of the police he took defendant's car from the possession of the police to his garage for storage on January 6, 1926. He particularly noticed the battery as it was new, and that the battery exhibited to him was the same battery that was in defendant's car at the time it came into his possession.
Ralph Gabariel, jointly charged with defendant, but as to whom the state dismissed the charge, testified in substance that he had served a term in the Missouri penitentiary for jail breaking, his sentence expiring in May, 1925. Going to Sedalia in October, 1925, he later met defendant. At the time the car was taken it was parked in front of the Terry Annex Hotel, headed west. Defendant and witness, after discussing the situation, converted the car to their use by driving it to Sixteenth street; witness driving defendant's car and defendant driving Barrett's car with the expressed purpose that, if any one tried to stop him, inasmuch as he was a deputy sheriff, he could avow that he had picked up a stolen car. On arriving at Sixteenth street, they stripped Barrett's car, taking from it the tires, battery, and other things. Defendant appropriated the battery saying that he wanted one; it being his avowed purpose in taking the car. Witness carried the tires and shotgun to Jefferson City, selling the shotgun, which he later recovered at the instance of the prosecuting attorney; but as he was unable to sell the tires, he returned with them, caching them under a bridge in or near Sedalia, from which place they were taken. Witness admitted he made a confession to the prosecuting attorney, but denied a promise of leniency to testify.
The sheriff testified that he had a warrant in this case for defendant's arrest in January, 1926, and found him at the home of Polly Howe, the keeper of a house of ill repute in Sedalia, but that defendant ran when he saw him, and that he did not again see him until he surrendered the following April.
For the defense, the defendant personally testified that he was with his counsel when they called on witness Luther at his garage, and Luther told them the only battery he had ever changed for defendant was before Christmas, 1925. He further stated that state's witness Gabariel used dope and was making his home with Claude Wilkerson, a man who had made serious threats against defendant. Defendant admitted that he had a battery changed at Luther's garage, but the change was made about November 30, 1925, and this was the only battery changed on his car.
Witness Hale for defendant, employed at Luther's garage, said that he heard defendant talking to Luther, and it was his impression that Luther stated that he changed the battery for defendant some time before Christmas; that to his knowledge the last battery changed for defendant was about November 30, 1925, when they took the battery from a Gardner car owned by defendant, putting it in defendant's Ford car.
Witness Wells, also an employee of Luther's garage, stated substantially the same thing as stated by Hale, with the additional testimony that he personally changed the battery for defendant on November 30, 1925. Witnesses Wingate and Dexheimer testified as to the good reputation of defendant.
I. The question of the want of substantial evidence to support the verdict is raised. Defendant argues that the testimony of Gabariel, an accomplice with the stain of a penitentiary sentence upon him, unsupported by other probative facts, was insufficient to show defendant guilty beyond a reasonable doubt as the rule of law requires. Treating the record as void of other evidence, it is nevertheless well settled in this state that the uncorroborated testimony of an accomplice tending to show the guilt of the defendant is sufficient upon which to base a verdict of guilty. We have often said that an accomplice is a competent witness and that his credibility becomes a matter for the determination of the jury. State v. Wigger, 196 Mo. 90, 93 S. W. 390; State v. Shelton, 223 Mo. 118, 122 S. W. 732; State v. Glon (Mo. Sup.) 253 S. W. 364. The testimony of the accomplice tended to show that defendant conceived the idea and instigated the taking of the car, personally driving it from its parking place to the place where defendant and the accomplice stripped it of the battery and tires, at which time defendant appropriated the battery to his own use. Even though we cast aside all other testimony as to the identification of the battery found in defendant's Ford car, the above-related testimony made a submissible case.
II. Defendant maintains that the weight of the testimony runs in his behalf, thus rendering the record without substantial evidence to support the verdict. The contention is based on the want of record evidence to identify the battery taken from his Ford car. The trial court admitted the battery produced in evidence. Defendant argues that the testimony shows that the battery had been in his possession long before the theft. While the evidence as to the identification of the battery, standing alone, would not have been sufficient to support a verdict of guilty, yet there were facts and circumstances in evidence tending to show that defendant avowed the purpose to take Barrett's Ford to obtain...
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