State v. Weiss

• Decision Date: 06 January 1920
• Citation: 219 S.W. 368
• Parties: STATE v. WEISS.
• Court: Missouri Supreme Court

219 S.W. 368

STATE v. WEISS.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

Rehearing Denied March 13, 1920.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Sam Weiss was convicted of grand larceny, and appeals. Affirmed.

On February 27, 1918, the grand jury of the city of St. Louis, Mo., filed, in the circuit court of said city, an indictment, charging defendant with the crime of grand larceny. The indictment is in the usual form, and charges him with having stolen, in the city of St. Louis, Mo., on November 30, 1917, an automobile of the value of $372, belonging to Charles Hannaman.

On May 20, defendant was arraigned in the circuit court aforesaid, under said indictment entered a plea of not guilty, proceeded with the trial before a jury, and on May 21, 1918, the jury returned into court a verdict, convicting him of grand larceny, and assessing his punishment at imprisonment in the penitentiary for two years. Defendant, on May 21, 1918, filed his motion for a new trial, which was overruled on June 17, 1918.

On June 28, 1918, defendant was duly sentenced, and judgment entered in accordance with said verdict. A recognizance was entered into by defendant, and an appeal granted him to this court.

State's Evidence.

The evidence on the part of the state tends to show that Charles Hannaman, a saloon keeper of said city, was the owner of a five-passenger Ford touring car, and that upon visiting a picture show on Pine and Sixth streets, in said city, on the night of November 30, 1917, he left the car parked in front of the theater.

Hannaman testified that he requested the doorkeeper of said theater to keep a watch on the car; that when he returned, the car was gone; that he telephoned to the police station, and an officer came down, to whom he gave a description of the car, but he heard nothing more about it until about December 5, 1917, when he was called to the police station; that he identified the car, which the police had recovered as his by reason of the fact that there were a number of small holes burned in the car top; that the radiator was bent; there were scratches on the car door, and the latter would not remain closed; that the license tag had been removed, and the numbers on the motor appeared to have been filed off, or at least some of them, and new numbers placed thereon. On cross-examination, witness testified he had bought the car from the Northern Motor Car Company, and paid therefor the sum of $372.

Max Wagner testified in substance, that he was in the express business, and on Wednesday night of December 5, 1917, defendant telephoned him several times that he had a car for sale, and finally brought it to the house of witness; that he paid defendant for said car, $140; that on the following Friday, Police Officer Helmholt came to his house and took the car; that he (witness) noticed there were little burned spots on top of the car; that the fender was bent, the wind shield and top glass were Out, the radiator top was bent, and it appeared that the motor numbers had been changed. On cross-examination, it developed that witness had been arrested in connection with the larceny, but was only held a short time and released on bond. He testified that defendant brought the car to his house about 7 p. m. on the 5th of December; that he paid him $140 in cash, in the presence of his sister, Lottie Wagner; that he did not take a receipt for the money, nor a bill of sale; that defendant told him he would give him a receipt any time he wanted it.

Albert Helmholt testified, in substance, that he heard Wagner had bought a Ford car, and that the numbers were changed; that he investigated, found the car there, took possession of same, and it was identified by Hannaman and his wife. He testified that there were little holes in the top of the ear; that parts of the radiator were bent back; that the motor block showed that some of the numbers had been taken off and others substituted for same. On cross-examination witness stated that when he arrested Wagner in connection with the theft of this automobile the latter told him he did not know the name of the person from whom he had purchased the car, but he described the man, and, upon being shown the pictures in the rogues' gallery, he identified the picture of Sam Weiss as the person from whom the car was purchased on December 5, 1917.

Defendant's Evidence.

Sam Weiss testified in his own behalf substantially as follows: That he was 20 years of age, was employed as a chauffeur by the Furman Commission Company, and lived with his parents in St. Louis; that he did not steal the car in question; that he did not sell said car to Max Wagner; that he lived there in the city until arrested in February; that he was convicted of forgery, was sentenced for one year to the workhouse, and was paroled; that he was answering to the parole, right across the street from Helmholt's office; that he never knew Wagner, and never saw him until he was identified at the trial of the case. He was asked, on cross-examination, whether he had ever seen Wagner's sister, who was pointed out to him in the court room. He answered that he had never seen her before; that he was never at Wagner's house.

Rebuttal.

Lottie Wagner, was called in rebuttal, and testified as follows:

"Q. Do you remember seeing this defendant at your house on the 5th of December? A. I do.

"Q. What time did he come there about? A. It was after supper, around 8 or 9 o'clock.

"Q. And what did you see down there, if anything? A. He came—

"Mr. Rowe: I will object to that, if your honor please; that is not rebuttal.

"The Court: The objection will be overruled."

To which ruling of the court defendant saved an exception. Witness then testified in chief, without further objection, that defendant came to her home about 8 or 9 o'clock on the night of December 5, and that she saw her brother take the money out of the safe and give it to defendant.

The instructions given by the court read as follows:

"Gentlemen of the jury, by the indictment herein, which was filed in this court on the 27th day of February, 1918, the defendant, Sam Weiss, is charged with the offense of grand larceny, and he pleads not guilty.

"It is the duty of the court to instruct you on all questions of law arising in this case, and it is your duty to receive such instructions as the law of the case, and to find the defendant guilty or not guilty according to the law as declared by the court and the evidence as you have received it under the direction of the court.

"First. If upon consideration of all the testimony in the case in the light of the court's instructions you find and believe from the evidence that at the city of St. Louis and state of Missouri, on or about the 30th day of November, 1917, or at any time within three years next before the filing of the indictment herein, the defendant unlawfully and feloniously did take, steal, and carry away one automobile from the possession of Charles Hannaman with the felonious intent to fraudulently convert the same to his own use, and permanently deprive the owner thereof without his consent, and that the same was the property of the said Charles Hannaman, and of the value of $30 or more, you will find the defendant guilty of grand larceny as charged in the indictment, and assess his punishment at imprisonment in the penitentiary not less than 2 years nor more than 5 years; and, unless you so believe and find from the evidence, you will acquit the defendant.

"`Larceny' as that term is used in these instructions, is the unlawful and fraudulent taking, stealing, and carrying away of any goods or personal property of another person of some intrinsic value, against the will of the owner thereof, and with the intent at the time unlawfully, fraudulently, and feloniously to convert such property to some use of the person or persons stealing, taking, and carrying away the same, and to deprive the owner of such property permanently without his consent.

"`Felonious' and `feloniously,' as those word§ are used in these instructions, mean wickedly and against the admonition of the law.

"Second. If you believe from the evidence beyond a reasonable doubt that the automobile mentioned in the indictment was stolen from Charles Hannaman, and that soon thereafter said automobile was in the exclusive possession of defendant, Sam Weiss, then and in that event the defendant is presumed to be the thief, and the burden is on him to rebut or overcome such presumption to your satisfaction, but not beyond a reasonable doubt; and, unless such presumption is overcome to your reasonable satisfaction by evidence in the case explaining such possession (if you find and believe from the evidence that he had the possession) in a manner consistent with his innocence, you should find the defendant guilty of the offense of grand larceny.

"Third. The jury are instructed that the evidence offered concerning the alleged prior conviction of the defendant upon another charge is no evidence tending to show the guilt of the defendant of the charge of grand larceny upon which he is now being tried, but upon said last-mentioned charge such evidence should be considered by the jury only in so far as you may believe it tends to affect the credibility of the defendant as a witness.

"Fourth. You are further instructed that the indictment contains the formal statement of the charge, but is not to be taken as any evidence of defendant's guilt.

"The law presumes the defendant to be innocent, and this presumption continues until it has been overcome by evidence which establishes his guilt to your satisfaction and beyond a reasonable doubt; and the burden of proving his guilt rests with the state.

"If, however, this presumption has been overcome by the evidence, and the guilt of the defendant established to a moral certainty and beyond a reasonable doubt, your duty is to convict.

"If, upon consideration of all...