State v. Tate
| Decision Date | 10 February 1969 |
| Docket Number | No. 53897,No. 2,53897,2 |
| Citation | 436 S.W.2d 716 |
| Parties | STATE of Missouri, Respondent, v. Willie James TATE, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Martin M. Lipsitz, Special Asst. Atty. Gen., St. Louis, for respondent.
Paul J. Kaveney, St. Louis, for appellant.
STOCKARD, Commissioner.
Willie James Tate was convicted by a jury of driving, using and operating the Buick automobile of Cecil Griffin without his permission, § 560.175, RSMo 1959, V.A.M.S., and his punishment under the provisions of the Habitual Criminal Act, § 556.280, RSMo 1959, V.A.M.S., was imposed at imprisonment for a term of four years. He has appealed from the ensuing judgment.
On December 8, 1967, Cecil Griffin parked his 1960 Buick automobile on the street in front of his house at 2305 North Kingshighway in the City of St. Louis. The next morning the automobile was gone. On December 10, 1967, Mr. Griffin saw his automobile parked at 2700 Cora Street. He called the police, but by the time they arrived the automobile had been moved. Mr. Griffin and the police later discovered it in front of 4372 Cote Brilliante. When defendant entered the automobile and started to drive away he was arrested.
Defendant did not testify, but he called as a witness Grover Cleveland McKinney, Jr., who at time of trial was an inmate of the city jail. McKinney testified that on December 10, 1967, his cousin, Carlos Gaines, turned over to him a 1960 Buick automobile which he thought belonged to Gaines. McKinney was driving the Buick automobile on Newstead Avenue when he saw defendant, and he stopped and offered him a ride. They then drove to where defendant's Cadillac automobile was parked on Cora Street. It had a flat tire, and McKinney agreed to loan defendant the Buick automobile so he could go to a hospital to obtain treatment for an injured hand. Gaines testified that he told defendant that the Buick belonged to him, that is, Gaines. Defendant drove away in the Buick automobile but he did not return, presumably because he was later arrested.
Defendant's first point is that the trial court erred in refusing to direct a verdict of acquittal because 'the State failed to show proper evidence of ownership of the vehicle.' Defendant argues that the best evidence of ownership would have been the title to automobile issued by the State of Missouri.
At the time Mr. Griffin testified that he was the owner of the Buick automobile defendant made no objection. It may be that the title to the automobile would have been what is referred to as the best evidence of ownership, but the State's evidence was sufficient to support a finding by the jury that Mr. Griffin was the owner, State v. Wahlers, Mo., 56 S.W.2d 26, and defendant cannot now complain on appeal that other, and what he calls better, evidence should have been presented.
Defendant next asserts that Instruction 1 was prejudicially erroneous because it failed to cover all the law of the case in that it ignored defendant's theory of defense which was that he had no criminal intent to operate or use the automobile without the permission of the owner. The substance of this contention is that defendant received permission to use the automobile from the person whom he thought was the owner and in lawful possession of it without knowledge on his part that it was stolen.
The provisions of § 560.175, RSMo 1959, V.A.M.S., applicable to this case are that 'No person shall drive, operate, use or tamper with a motor vehicle * * * without the permission of the owner thereof.' In State v. McLarty, Mo., 414 S.W.2d 315, this court held that criminal intent is an essential element of the crime of tampering with a motor vehicle. For the reasons set forth in the McLarty case that criminal intent is an essential element of the crime of tampering with a motor vehicle, criminal intent is also an essential element of the crime of driving, operating and using a motor vehicle without the owner's permission.
Defendant's evidence, if believed, would authorize but not necessarily compel a finding that defendant had no intent to operate the Buick automobile without consent of the owner, and that when he drove the Buick he did so with the belief that he had the permission of Mr. McKinney, and that Mr. McKinney was...
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...the court did not err in failing to instruct the jury on all the law of the case. Compare State v. Powers, Mo., 442 S.W.2d 4; State v. Tate, Mo., 436 S.W.2d 716 and State v. Drane, Mo., 416 S.W.2d Also in this factual background is the assertion that the appellant 'was arrested without a wa......
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...l.c. 643, where it is held: 'The defendant's claim of error, based on McLarty (State v. McLarty, Mo., 414 S.W.2d 315) and Tate (State v. Tate, Mo., 436 S.W.2d 716), rests on his assumption that the trial court was obliged to instruct on all questions of law. Not so. Criminal Rule 26.02(6) a......
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