State v. Waghalter

• Decision Date: 17 November 1903
• Citation: 76 S.W. 1028,177 Mo. 676
• Parties: THE STATE v. ADOLPH WAGHALTER, Appellant
• Court: Missouri Supreme Court

76 S.W. 1028

177 Mo. 676

THE STATE v. ADOLPH WAGHALTER, Appellant

Supreme Court of Missouri, Second Division

November 17, 1903

Appeal from St. Louis City Circuit Court. -- Hon. W. B. Douglas Judge.

Reversed.

Thos B. Harvey for appellant; S. S. Bass of counsel.

(1) It was error to admit proof of statements made by Joseph Mack. The court and the prosecuting attorney were clearly mistaken in holding that the law permits a statement of the thief made in the absence of defendant and not under circumstances binding on him, to be introduced against the receiver for the purpose of proving that the property was stolen. Such evidence is clearly hearsay. The case referred to by the circuit attorney, to-wit, State v. Smith, 37 Mo. 58, does seem, on casual reading, to hold as he stated; and in the case of State v. Sweeten, 75 Mo.App. 127, the Kansas City Court of Appeals was misled by the awkward wording of the opinion in State v. Smith, supra. But very recently in the case of State v. Levy, 168 Mo. 521, this court has reviewed the two aforesaid cases and reversed them in so far as they hold that the statement of a thief is competent to prove that the property was stolen. But even if the statements of Mack had been made in the presence of the defendant, yet he being under arrest was in no position to be called upon to reply. State v. Howard, 102 Mo. 148; State v. Mullins, 101 Mo. 517; State v. Murray, 126 Mo. 616. (2) The court erred in rejecting defendant's offer of the duly authenticated record of the Illinois court and other proof to show that under the laws and adjudications of said State, the acts of Joseph Mack did not constitute larceny. Sec. 2362, Revised Statutes 1899, provides that if a person steals property in another State and brings it into this State, "he may be punished for larceny in the same manner as if such property had been feloniously stolen or taken in this State," etc. By the terms of this statute, whether property taken in another State and brought into this can be characterized as stolen property, depends upon whether, under the laws of the other State, the taking constituted larceny. It has been expressly decided that the acquittal of the alleged thief necessitates the acquittal of the alleged receiver. State v. Antoine, 42 La. Ann. 945; Reg. v. Streeter, 19 Cox. Cr. Cases 570. (3) Appellant's demurrer, offered at the close of the State's case, should have been given on one of the grounds assigned therein, to-wit, that the property alleged to have been received by the appellant from Mack was not stolen, it having been delivered to Mack by Brown, the detective and agent of and for the owner, the said Brown having directed and induced Mack to take said property and deliver it to the appellant. Clark's Crim. Law, p. 260; 1 Bish. New Cr. Law, sec. 263; Rapalje on Larceny, sec. 224; Hughes' Cr. Law and Proc., sec. 2428; Love v. People, 160 Ill. 508; People v. McCord, 76 Mich. 200; Adams v. State, 40 Ala. 234; Connor v. People, 18 Colo. 373; Williams v. State, 55 Ga. 395; Rex v. McDaniel, Foster 121; 18 Am. and Eng. Ency. Law (2 Ed.), 472; Pigg v. State, 43 Tex. 108; O'Brien v. State, 6 Tex.App. 665; Johnson v. State, 3 Tex.App. 593; People v. Clough, 59 Cal. 438; People v. Morgan, 4 Utah 407; Allen v. State, 40 Ala. 334. And in support of the proposition that even though the commission of the offense may be suggested or instigated by the defendant, yet he can not be held liable for those things which are done only by the owner, or his agent, although the defendant may have been present aiding and abetting in the doing of them: Spieden v. State, 3 Tex.App. 156; State v. Douglass, 44 Kan. 618; State v. Jansen, 22 Kan. 498; People v. Collins, 53 Cal. 185; Williams v. State, 55 Ga. 391; Allen v. State, 40 Ala. 334.

Edward C. Crow, Attorney-General, and Bruce Barnett for the State.

(1) The court properly admitted in evidence the written statement made by Joe Mack to the police department of St. Louis, showing that he stole the property. State v. Smith, 37 Mo. 58; State v. Sweeter, 75 Mo.App. 127. If there was any error in the admission of such statement, it was cured by defendant's introduction of evidence corroborative of the facts set forth in said statement. State v. Moore, 156 Mo. 212. (2) The court properly refused to give any instructions authorizing the jury to acquit if they believed that the box of clothing was taken by Joe Mack at the suggestion of Brown, who acted with the consent of the railroad company; this property was in the possession of the railroad company as carrier, and while the theft was from that company, yet the consignee of the goods had such an interest in them at that time that the railroad had no power to consent to any act upon the part of Joe Mack, which would deprive the consignee of his right or ownership in the goods. State v. West, 157 Mo. 309; State v. Stubblefield, 157 Mo. 360. (3) The court was right in instructing the jury to ignore the fact that Joe Mack had been acquitted of the charge of larceny of the property in question. The question did not thereby become adjudicated in favor of defendant. Defendant had never been put in jeopardy for the offense. The indictment does not charge that Joe Mack stole the property, and the conviction of the thief is not a necessary prerequisite to the conviction of one receiving the stolen property. R. S. 1899, sec. 1917; State v. Phillips, 24 Mo. 475; State v. Ross, 29 Mo. 32; State v. Orr, 64 Mo. 339; State v. Anderson, 89 Mo. 312. Such conviction would not even be a bar if Joe Mack were the defendant here. Fosier v. State, 39 Ala. 229; Com. v. Bragg (Ky.), 47 S.W. 212. Defendant is not charged with receiving property stolen by Joe Mack, but of receiving stolen property. The indictment did not allege by whom the property had been stolen, nor was such an allegation necessary. State v. Guild, 149 Mo. 377.

GANTT, P. J. Fox, J., concurs; Burgess, J., absent.

OPINION

GANTT, P. J.

The defendant was indicted in the circuit court of the city of St. Louis, together with Samuel Waghalter, for receiving stolen goods knowing them to have been stolen, to-wit, one box of clothing of the value of $ 740.50, from the Cleveland, Cincinnati, Chicago & St. Louis Railway Company.

A severance was granted and on his separate trial defendant was convicted and sentenced to the penitentiary for three years. From that sentence he appeals.

The facts are practically undisputed. On the 28th of July, 1901, the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, commonly known as the "Big Four," received at its freight house in East St. Louis, Illinois, a box or case of clothing of the value of $ 740.50, addressed and consigned to Seelig & Co., Kansas City, Missouri, billed to be delivered to the Missouri Pacific Railway Company for transportation over the remaining distance to Kansas City. In the usual course of business this box was to be transported to the Missouri Pacific Railway freight office by the St. Louis Transfer Company, a common carrier, which was in the business of transporting freight from one connecting railroad to another.

In order to keep a record of the transportation of this freight in this manner, a uniform system was in operation between all of the railroads running into East St. Louis and the Transfer Company, by which the railroad company delivering the freight to the Transfer Company made out duplicate tickets showing the box or bundle of freight, with the number and name of the consignee, and when each bundle was delivered to the Transfer Company's wagon, the driver thereof signed one of these tickets as a receipt to the railroad for the delivery of the goods and the other ticket was given to the driver of the wagon, who, under his instructions, would, upon the delivery of the goods to the other connecting railroad, get the signature of that company to that ticket for the delivery of the freight, and this ticket would be returned by the driver of the Transfer Company's wagon to the first company, so that when a railroad sent freight through this Transfer Company to a connecting line, it would have receipts therefor or acknowledgment of the delivery thereto, both from the Transfer Company, and from the railroad company which had received the freight.

All of the employees, both of the Big Four railroad, and of the Transfer Company, had strict instructions neither to deliver nor receive freight except upon compliance with the above rule.

These tickets referred to were, in the course of business and under the fixed rule of the Big Four, delivered by a delivery clerk, to a person known as a picker, an employee whose business it was, upon the receipt of the tickets in duplicate, to search or pick out the articles or boxes of freight designated by such tickets, and to deliver the same to the driver of the wagon of the Transfer Company.

The evidence shows that a trucker would actually load or assist in loading the freight on the wagon, but for practical purposes the picker would deliver the goods to a driver of the Transfer Company.

The testimony shows that from about the latter part of June 1901, until the 31st day of July, 1901, the prosecuting witness, The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, popularly known as the "Big Four," had in its employ and pay a Thiel detective, named C. V. Brown, under the disguise of a "picker" of freight on the platform of said railroad company at East St. Louis, in the State of Illinois; that said detective was employed and sent over to East St. Louis to do work as a detective for and on behalf of the Big Four railroad, under the mask of a picker for said Big Four railroad, as a result of a conference between Mr. Neel, local superintendent or agent of said...