State v. Strait
| Decision Date | 22 December 1925 |
| Docket Number | 26446 |
| Citation | 279 S.W. 109 |
| Parties | STATE v. STRAIT |
| Court | Missouri Supreme Court |
Robert W. Otto, Atty. Gen., and J. Henry Caruthers, Asst. Atty Gen., for the State.
The defendant, Lon V. Strait September 23, 1924, in the circuit court of Oregon County, by a jury was found guilty of burglary and larceny, and his punishment assessed at two years' imprisonment in the state penitentiary for each offense. Judgment accordingly, from which he appealed.
The information charged Lon V. Strait, Bessie Strait his wife, and Tom Burns, with breaking into the store of one A. A. Taber at Thayer, Mo., June 8, 1924, and carrying away certain articles of merchandise enumerated, of the value of $ 160. A severance was granted Bessie Strait and Lon V. Strait, and on a former trial the jury disagreed. Thereafter a severance was granted to Bessie Strait, and Lon V. Strait was tried alone, with the result mentioned. It was the theory of the state that the Straits and Burns were engaged in the business of burglarizing stores and shipping the plunder to Joe Kipperman at Hot Springs, Ark. In May and June, 1924, they camped in Oregon county, near Thayer, and later camped on the James river, about 9 miles from Springfield.
The evidence shows that on the night of June 8, 1924, the store of A. A. Taber was entered by unlocking the front door; some clothing and a suit case were taken. June 27th the two Straits and Tom Burns were arrested at their camp near Springfield, and in their possession was found the suit case which Taber claimed was stolen from his store on the night of June 8th. Some clothing taken from Taber's store was found in Kipperman's possession at Hot Springs. The appellant claimed that the identification of the clothing and the suit case was not sufficient to show that they belonged to Taber. That point will be noticed more fully in considering defendant's demurrer to the evidence.
Ed Monroe, special agent for the St. Louis & San Francisco Railroad Company, was in Hot Springs about June 25th, when Kipperman turned over to him a letter which he had received from Thayer, Mo., signed 'Jake,' and referring to a box of clothing sent from Doniphan, Mo. Burns and the Straits were in Thayer on that day. This letter was mailed June 24, 1924. It was further shown by the Missouri Pacific agent at Doniphan, Mo., that a box was shipped from there in June by some one to Joe Kipperman at Hot Springs.
When the parties were arrested in their camp near Springfield, June 27th, by A. C. Lindley, sheriff of Oregon county, and officers from Springfield, the officers found a complete camping outfit, the suit case mentioned, some clothing, and a revolver; also dynamite caps, a fuse, and a bunch of keys were found hidden near the camp.
After the arrest, Bessie Strait, wife of Lon V. Strait, told the officers that the keys which were found at the camp were used to get into stores, that the parties had camped at a big spring, which the officers understood to be Mammoth Spring, and that they had entered two stores, one of which was at Cabool. She said that the two men robbed stores while she kept the camp. Her story was objected to, and exception saved to its admission in evidence.
The state introduced Clarence Davis, cashier of the bank at Thayer, to show that Tom Burns presented two Western Union telegrams, one of May 14, and the other of March 8, 1924. These telegrams were sent by Joe Kipperman of Hot Springs, Ark., in code, which the witness translated to be a direction by Kipperman to pay to Burns, in one instance $ 70, and in the other $ 50.
It was shown that Burns and Strait were in Thayer a day or two before the burglary, and looked at clothing in Taber's store, but did not purchase any. The clothing which they looked at was taken from the store the night of the robbery. It was shown also that the Straits and Burns were in Thayer June 24th.
The evidence offered by the defendant tended to show an alibi. It consisted largely of the testimony of his father and mother and brother and sisters in Kansas, to the effect that he was in Kansas at the time of the robbery. The defendant was not sworn; neither was Burns. Bessie Strait was sworn and testified to nothing except to deny she made the statements sworn to by the officers who arrested her.
Appellant has filed no brief in this court, and we have recourse to the motion for new trial to ascertain the alleged errors to be considered.
I. The trial court overruled a demurrer to the evidence at the close of the case, and this is assigned as error. The evidence showed that Taber's store was entered June 8, 1924. Two articles taken from the store at that time soon afterwards were found in the possession of the Straits and Burns, if the identification of the articles was sufficient to establish that fact. The possession of recently stolen goods is a circumstance to be considered, from which the jury may infer that the possessor is the thief. State v. Swarens, 294 Mo. loc. cit. 155, 241 S.D. 934.
A. A. Taber testified that the suit case which was taken from the store was the one turned over to him by the sheriff, who found it at the camp of the three defendants near Springfield June 27th. In answer to a question by the state's attorney who asked him to look at the case, he said, 'Yes; that is the same case.' On cross-examination, the witness was made to say that he could not positively identify it, but on redirect examination this evidence was given:
O. M. Taber, son of A. A. Taber, testified to the robbery of the store, and said this:
Both the witnesses on cross examination testified there was no private mark on the suit case by which they could distinguish it, but that it was one of peculiar make. It had a lot number which was the same as others of like character and quality; nevertheless, it was the only bag of its kind in the store, and was rarely used in the community. The two witnesses said repeatedly that they identified it as the bag taken. The expression of doubt in answer to leading questions in cross-examination did not deprive the positive statements in the direct examination of their probative character. It was for the jury to say whether the identification of the bag recovered as the one stolen was sufficient.
Besides the suit case, some clothing was recovered in Hot Springs, Ark. Taber testified that he was in Joe Kipperman's store in Hot Springs and found one suit, which he identified as part of his property stolen June 8th. It was part of the clothing shown to Burns and Strait when they came into his store just before the robbery. Taber, on cross-examination, in answer to leading questions, said, in regard to the suit of clothes, that he could not positively say that the suit came out of his store. O. M. Taber, the son, on his examination, testified that the suit of clothes was the one taken from the store. He admitted that he had been mistaken regarding another suit about which he was questioned, and then said on cross-examination:
-- this referring to the suit which Taber claimed. Whether Kipperman got the suit from Burns and Strait was a question of fact to be noted later.
We think that the identification was sufficient to submit the question to the jury whether the property found in the possession of the defendant was the property taken from the Taber store the night of June 8th, and whether defendant was one of the robbers. Although Bessie Strait testified, and Kipperman might have been produced as a witness, defendant attempted no explanation of innocent possession of the property. The demurrer to the evidence was properly overruled. In deciding this point we have not taken into consideration a number of circumstances which point to Strait and Burns as the guilty parties.
II. Several items of evidence admitted on behalf of the state were objected to by the appellant, and exceptions saved to their admission. Some of these items relate to the statements and activities of Burns and Mrs. Strait, and their admissibility depends upon whether a conspiracy was shown on the part of the three defendants to rob Taber's store and other stores. Burns and Strait were in Taber's store three or four days before the robbery, and looked at the very goods which afterwards were stolen. They were together June 7th, the day before the robbery, were together in the store of A. B. Salem, at Thayer, and looked at some clothing. They had Taber's suit case in their possession in the camp near Springfield when arrested June 27th. One suit of clothes taken from Taber's store was found in Kipperman's store in Hot Springs in the latter part of June. The parties were together in the post office in Thayer June 24th, at which time the following letter, addressed to Joe Kipperman at Hot Springs, shown to be in the handwriting of Burns, was written:
'Yours truly, Jake.'
There was no objection to this letter in the motion for new trial on the ground that a conspiracy was not shown. There were objections to the method by which the handwriting of Burns was proven. These will be considered later. This letter was turned over to Mr. Monroe and the chief of police at Hot...
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