State v. Thornton

• Decision Date: 03 March 1933
• Docket Number: No. 32357.,32357.
• Citation: 58 S.W.2d 314
• Parties: STATE v. THORNTON.
• Court: Missouri Supreme Court

58 S.W.2d 314

STATE v. THORNTON.

No. 32357.

Supreme Court of Missouri, Division No. 2.

March 3, 1933.

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

Charles Thornton was convicted of grand larceny, and he appeals.

Affirmed.

William Barton, of Jonesburg, for appellant.

Stratton Shartel, Atty. Gen. (Robert B. Denny, of Clayton, of counsel), for the State.

COOLEY, Commissioner.

By information filed in the circuit court of Lincoln county, defendant was charged with grand larceny for the alleged stealing of a cash register containing $25 in money, a revolver, two pairs of coveralls, and a leather coat, the property of Olin Morris, of the aggregate value of $168. Upon trial he was convicted, and his punishment was assessed at two years' imprisonment in the penitentiary. From sentence and judgment upon the verdict, he has appealed.

Defendant's challenge of the sufficiency of the evidence requires a detailed statement of the facts. The state's evidence tended to show the following:

The larceny occurred at between 2 and 3 o'clock on the morning of May 30, 1931, in the office of Olin Morris' garage at Troy, Mo. The building in which the garage business and office were located is seventy feet long and thirty feet wide. The south fifteen feet was used as a restaurant, conducted by one Basye. North of and adjacent to the restaurant was the garage office. The part of the ground floor of the building north of the office was used for garage purposes. There was an upper story which was occupied by Morris and his wife as a residence. In the "rear" of the office there was a men's toilet room. A door opened from the office into the toilet room. The clothes in question were habitually kept in a closet in that toilet room. The cash register, which was a combined cash register and adding machine, weighing about one hundred pounds, was kept in the office, where there was also a desk, in the upper left-hand drawer of which the revolver was kept. It was seen in that drawer as late as 11:30 the night of May 29, some two and a half or three hours before its theft was discovered. There was an outside window to the toilet room through which the cash register could be passed. The bottom of the window was about four feet above the floor and five or five and a half feet above the ground outside. Back of the restaurant there were a number of empty barrels, but the evidence does not show there were any indications on the ground under the window of a barrel or like object having been placed there. The cash register was fitted with a bell which rang when the cash drawer was opened, and could be heard in the garage and restaurant.

Defendant had worked for Morris two years, and was familiar with the building and surroundings. He had ceased working there about two months prior to the larceny, but had continued to be much about the premises, especially at night, and was on friendly terms with Morris.

On the night in question, defendant and one Bob Allen came to the garage together in defendant's car at about 1 o'clock. They were in the restaurant for a time. They left about 1:30, but returned together in half an hour or so. Once or twice while both were about the premises Allen was seen sitting in defendant's car while defendant was in the restaurant. Shortly after defendant and Allen returned, the office door was heard to "slam," and two witnesses, looking in through a window, saw defendant go to the desk, open the drawer in which the revolver was kept, and "looked like he got something out, and walked straight to the toilet door" and went into the toilet room. No one else was then in the office. One of the witnesses "walked in and looked into the drawer and the gun was gone." Presently defendant "came back and stood around there." It does not appear whether defendant was seen coming out of the toilet room or whether he was simply seen standing around outside later. That witness, Hutton, the night man at the garage, testified: "When I come out he (defendant) went into the restaurant and got some cigarettes; I stood by the door awhile and he set down in front of the gas tank on the concrete block there and lit a cigarette and when I looked out the door he was gone." As best we can gather from the record, said concrete block was at the front or north end of the garage. The evidence indicated that defendant sat there ten minutes or so. No witness saw him leave there. Very soon after it was noticed he had left that spot, a noise was heard at or about the back part of the building. Hutton and Hubert Basye "went through the restaurant and looked out the back windows," or, as Basye put it, went around to the south of the restaurant. Basye saw "some fellow, a tall person, go back of the restaurant." It was dark, and Basye did not recognize the man. He called out, "Who in the hell is back there?" but got no response. The man was running. Hutton testified: "We turned and started to go back through the restaurant, and we thought we heard somebody walking on the gravel and Charley (defendant) was getting in his car and started the motor." Both Hutton and Basye saw defendant get into his car. This was within a very short time after the noise had been heard at the back. The car was then parked very near the south side or southeast corner of the building and some light from the restaurant window fell upon it. Hutton recognized defendant and his car as defendant got into the car, and Basye said it looked like defendant's form. Defendant started the car "suddenly" and drove away southward. Hutton and Basye then "went back out the front and stepped into the office," when Hutton discovered that the cash register was gone. Its absence had not previously been noticed. They tried to open the toilet room door and found it had been locked from the inside. Hutton then went upstairs and aroused Morris, who called the sheriff from an upstairs telephone, dressed, and came down. When he got downstairs, defendant had reappeared in the restaurant. He had been gone from the premises but a short time, not more than about five minutes, according to the estimate of some witnesses. His car was then parked at the north end of the building. Hutton and Basye saw no one with defendant nor in his car when they saw him getting into it as above detailed, and could not tell that he was carrying anything, but, except for the fleeting glimpse Basye had of the man he saw running back of the restaurant (if that was defendant), neither saw him until after he had got to the car and was about getting into it.

The sheriff arrived a few minutes after he had been called. Some one got into the toilet room through the window and opened the door. In the wash bowl was found a small piece of tin or metal that had come off the cash register. The cash register itself was not there. There were no dents, or scratches, on the framework of the window, which was of yellow pine, except a small cut that looked like a knife cut, but some mud was noticed on the framework. It had rained on May 29, and also that night. Defendant and Allen were arrested and placed in jail.

As soon as it was light enough to see next morning, the cash register and the stolen clothes and revolver were found. The cash register was found in a small ditch about one hundred yards northwesterly from the garage, on the opposite side of the road. It was in two parts; the cash register and adding machine parts having been broken apart or in some way separated from each other. So far as Hutton knew, nothing had been taken out of it. The clothes and revolver were found in the yard of a Mr. Thurman two or three hundred yards south of the garage. No stolen articles were found on defendant's person or in his car.

Shortly after the larceny was discovered, bloodhounds were sent for. They were brought by their trainers soon after daylight the morning of May 30. They were taken to the cash register where it lay in the ditch, also to the toilet room window and the ground outside, and were allowed to smell the clothes. It should be added, however, that others had been about the building outside the window after the larceny and before the dogs were brought. We shall not set out in detail the testimony concerning the actions of the dogs, as no point was made as to its competency, and the identification of defendant as the guilty person by no means rests wholly nor even chiefly upon that evidence. Suffice it to say, the evidence tended to show that the dogs were qualified by nature and training to pick up and follow the scent of a human being and to differentiate the scent of one person from that of another and to...