State v. Tipton
| Decision Date | 19 March 1925 |
| Docket Number | No. 26044.,26044. |
| Citation | 271 S.W. 55 |
| Parties | STATE v. TIPTON. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.
Roy Tipton was convicted of grand larceny, and he appeals. Affirmed.
Harvey & Baer, of St. Louis, for appellant.
Jesse W. Barrett, Atty. Gen., and W. L. Vandeventer, Sp. Asst. Atty. Gen., for the State.
Statement.
On April 18, 1923, appellant, Roy Tipton, was charged in a verified information filed in the circuit court of the city of St. Louis, Mo., with the crime of burglary in the second degree and grand larceny, in a single count. Said information, without caption and verification, reads as follows:
Defendant was arraigned and entered a plea of not guilty. He was tried before a jury and on November 14, 1923, the following verdict was returned:
After the return of said verdict on November 14, 1923, appellant filed his motion for a new trial, and on the 16th of said month filed a supplemental motion for a new trial. Both of said motions were overruled on November 26, 1923. On November 30, 1923, defendant filed a motion in arrest of judgment, which was overruled. Thereafter, on the same day, judgment was rendered, sentence pronounced upon him, in conformity to the terms of the verdict aforesaid, and he was granted an appeal to this court.
The testimony, as stated by counsel respondent in their brief, is substantially correct, and reads as follows:
State's Evidence.
The evidence on the part of the state tended to prove the following facts:
On the 4th day of March, 1923, the Witte Hardware Company had its place of business at 704 and 706 N. Third St., between Lucas and Morgan, fronting west and extending back toward the east to an alley running north and south, in the city of St. Louis, Mo. The Witte store building adjoined the Zelle Bros. Commission Company on the south and the Stratmann Commission Company on the north, with no natural connection between any of the three buildings, partition walls separating said building. The first floor of the building occupied by the Witte Hardware Company was practically on a level with Third street and thereunder and under the street level a basement extended back toward the alley.
On Saturday, March 3d, at about 2:45 p. m., after securely locking all the doors of the Witte Hardware Company building, Mr. Albert T. Caltwasser, the business manager, left the premises. He next visited the place on the following day, Sunday, at about 11 o'clock a. m.. for the purpose of admitting a representative of the Missouri District Telegraph Company to do some repair work. When he left the building at about 11:30 a. m., all the doors and windows were securely locked. He was again called back at about 6:30 p. m. of the same day and upon arriving at the premises found a number of police officers. On further inspection he found a hole in the north wall of the Witte Hardware building at a distance of about 50 feet east of the building line about 30 inches in diameter, being a hole large enough to admit the body of a man. This hole led into the adjoining building, occupied by the Stratmann Company, which building had been broken into in order to get access into the Witte Hardware Company building.
There was taken from said stock of goods in the Witte Hardware Company building 95 revolvers, rifles, shotguns, hunting knives, flashlights, and flashlight batteries, all of the value of $431.08. Immediately next to the hole drilled through the wall between the Stratmann Commission building and the Witte Hardware Company building, in the Stratmann building basement, were found a number of large empty sacks bearing the label of a certain seed house on Fourth street in the city of St. Louis. Outside the hole which had been drilled in the wall of the Stratmann Commission building were found a number of sacks, bearing the same label, filled with goods taken from the Witte Hardware Company. These sacks of goods were removed to the Fouth street police station.
On the 4th day of March, at about 5 o'clock in the afternoon, Officer Henry William Kohne of the Fourth district police station was walking along on Third street toward Washington avenue, trying certain doors of buildings and found at 712 N. Third street that the door leading into the Missouri Commission Company was open. The officer walked toward the back of this building and saw two men who were feeding chickens in the place. The officer continued walking south on Third Street and continued trying doors. When he reached the Witte Hardware Company building he opened the vestibule and went in and tried the door and looked into the office and noticed a man in the office on the south side of the building. As he tried the door the man looked toward the door. He looked at the officer and the officer looked at him and the man walked straight toward the entrance where the officer was standing. He wore a blue suit with a wide stripe, no hat. When he got within 50 feet of the officer he went over toward the wall and it looked as if he had fallen down. The officer did not know where he had gone. The officer then left the vestibule and told Mr. Kratz, who was walking with him, to call up Olive 5000 and advise that number that the officer needed help. He then ran down toward Lucas avenue. The defendant was the man whom the officer had seen in the building on the Sunday afternoon mentioned. A few minutes after the call for help was sent in several officers appeared. Shortly thereafter Lt. Vasey appeared. The officers then entered the building and found that a hole had been cut in the wall on the north side of the building just large enough to admit a man. The hole led from the Stratmann building into the basement of the Witte Hardware building. The door in the back of the Stratmann building had been jimmied open.
On the 5th day of March Officer Kohne saw the defendant at police headquarters. On the 4th day of March, about 5:50 p. m., Officer Murphy was called and instructed to go to the Witte Hardware Company at Third and Washington avenue in the city of St. Louis, that the Witte Hardware Company was being burglarized; that he responded to the call and searched the place, but found no one in the building; that Inspector Vasey who was present gave Murphy an automobile license tag and from the license number Murphy recognized the automobile to be the automobile of Herman Tipton. He immediately called the police station and was issued orders to arrest Herman Tipton, his brother, Roy Tipton, and several other men. On March 5th, Officer Murphy was at police headquarters, and in the presence of Officers Whalen and Mollering had a conversation with defendant. Officer Joseph G. Whalen arrested the defendant, Roy Tipton, on the 5th of March, at Twelfth and Clark streets.
Defendant's Evidence.
The evidence on behalf of the defendant tended to show that Alexander Kelley of 1017 Russell Ave., St. Louis, was a very good friend of the defendant, having been a schoolmate; that he met the defendant at about a quarter of four p. m., on Sunday, March 4th, at twelfth and Chouteau; that they remained standing at this corner for some few minutes and then attended the Merry Widow show which is located at Dillon and Chouteau Ave., in St. Louis, which is about three blocks distant from Twelfth and Chouteau, occupying seats in the last row of said showhouse. After 10 or 15 minutes they were joined by another friend, Oliver Harrison. The three remained at the show until about 6:15 p. m. After leaving the show the three went over to Dillon street, to Hickory, down Hickory where they left Harrison at his home. The defendant and Kelley proceeded down Hickory street, the defendant leaving Kelley at his home at Ninth street, and Kelley then proceeded on to his home.
Such other matters as may be deemed necessary, will be considered in the opinion.
Opinion.While counsel for appellant in their brief have not attacked the validity of the information, yet its sufficiency is challenged by the motion in arrest of judgment which recites that:
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