State v. Wells

• Decision Date: 19 November 1921
• Docket Number: No. 23018.,23018.
• Citation: 234 S.W. 825
• Parties: STATE v. WELLS et al.
• Court: Missouri Supreme Court

234 S.W. 825

STATE v. WELLS et al.

No. 23018.

Supreme Court of Missouri, Division No. 2.

November 19, 1921.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

Harry Wells and Roy Miller were convicted of grand larceny, and appeal. Affirmed.

Convicted of grand larceny and sentenced for a term of four years in the penitentiary, appellants have duly prosecuted their appeal to this court, hut, as they file neither briefs nor assignments of error, we turn to the record and examine it as required by law.

The information upon which they were convicted is based upon section 3312, R. S. 1919, and is of the form approved by this court (State v. Swearengin, 234 Mo. 549, 137 S. W. 880), and is sufficient. The jury returned a separate verdict against each of the appellants, reciting in each case that it found "the defendant guilty of grand larceny, as charged in the information," etc. Such verdict is regular.

Evidence.

For about two weeks prior to March 16, 1920, appellant Harry Wells had worked for the General Motors Company, a corporation, at its place of business In the city of St. Louis, as a day watchman. The said company was engaged in building automobiles, and for its convenience carried automobile accessories in stock, including spark plugs and speedometers. It was the duty of the said Wells to be about the stockroom of said company to see that nobody stole any part of such accessories. On the 17th day of March, it was discovered that some 200 or 300 spark plugs of the value of 50 cents each and several speedometers of the value of $15 each had been stolen. Immediately appellant Wells was suspected and an investigation was started. The testimony then tends to show that appellants were frequenters of a house numbered 918 Chouteau avenue, St. Louis; that these appellants on the evening of the 15th of March, with one Kaufmann, who was a night watchman for the General Motors Company, were in a room together at the above address discussing the General Motors Company, and Kaufmann invited appellant Miller to come up to the place of business of said company; that about 9 o'clock of the 16th, the day Miller was to have visited the General Motors Company, the said appellant Miller came into a room at said 918 Chouteau avenue with 100 spark plugs In his overcoat pocket; that the appellants then arranged to take said spark plugs to a certain dealer for sale, which the testimony tends to show they did; that said spark plugs were recovered from said dealer and identified as the property of the General Motors Company; that the testimony further tends to prove that the speedometer, the property of the General Motors Company, of the value of $15, was stolen; that appellants were soon thereafter found In possession thereof; and that, upon the approach of the police to the room where the appellants were, said speedometer was thrown out of the window where it was recovered. Appellants did not testify in their own behalf, but sought to prove an alibi by two witnesses, both of whom were serving sentences in the workhouse.

Jesse W. Barrett, Atty. Gen. (R. W. Otto, of counsel), for the State.

REEVES, C. (after stating the facts as above).

Appellant's motion In arrest of judgment is an exact copy of their motion for a new trial. The motion for a new trial:

(a) Challenges the sufficiency of the testimony to warrant the submission of the case to the jury.

(b) Complains that the court should have instructed on petty larceny as "asked for by defendants."

(c) Complains against the conduct of the assistant circuit attorney in cross-examining one of the state's witnesses.

(d) Complains against the argument of the state's attorney to the jury wherein he referred to the appellants as "birds" and the failure of the court to rebuke counsel therefor.

(e) Lastly, they complain against the failure of the court to sustain their demurrer at the close of the state's evidence.

First. The testimony in this case was sufficient to justify its submission to the jury. Appellants had access to the stock room of the General Motors Company. Subsequently and immediately after spark plugs and speedometer had been stolen from said company these appellants had in their possession 100 spark plugs, which they disposed of to a dealer, and which, when recovered immediately thereafter, were identified as the property of the General Motors Company. They had one of the speedometers immediately after the theft thereof, and, upon the approach of the police, it was thrown out of the window of the room occupied by appellants. The case was properly submitted to the jury. State v. Baker, 264 Mo. 339, 175 S. W. 64; State v. Carpenter, 216 Mo. 442, 115 S. W. 1008; State v. Dewitt, 152 Mo. 76, 53 S. W. 429.

Second. In disposing of paragraph I. hereof, it is not necessary to pass on the correctness of the court's action in overruling defendant's demurrer at the close of the state's evidence, but we should say that by the introduction of testimony appellants waived their right to insist...