State v. White, 53226

• Decision Date: 08 July 1968
• Docket Number: No. 2,No. 53226,53226,2
• Parties: STATE of Missouri, Respondent, v. James R. WHITE a/k/a Tony Crabral, Appellant
• Court: Missouri Supreme Court

Page 182

431 S.W.2d 182

STATE of Missouri, Respondent, v. James R. WHITE a/k/a Tony Crabral, Appellant.

No. 53226.

Supreme Court of Missouri, Division No. 2.

July 8, 1968.

Motion for Rehearing or to Transfer to Court En Banc Denied

Sept. 9, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Milton F. Svetanics, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.

Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.

EAGER, Judge.

Defendant was charged by information with felonious stealing in that he 'did then and there wilfully and feloniously being employed by Forum Cafeteria, Inc., a Corporation, did embezzle, steal, take and carry away, by deceit, lawful currency of the United States of a value greater than $50.00, with the intent to convert the same to his own use and deprive the owner of the use thereof against the peace and dignity of the State.' We have thus quoted the information because its precise language is material to our consideration of the case. The cause was submitted to the jury upon an instruction which required it to find that the defendant 'wilfully, unlawfully, and feloniously, did steal, take, and carry away, lawful currency of the United States of a value after the overruling of his after-trial property of Forum Cafeteria, Inc., if you so find, and without the consent of the owner thereof with the felonious intent to convert the same to his own use and to deprive the rightful owner of the use of said currency, * * *.'

The jury found defendant guilty of 'felonious stealing' and assessed his punishment 'at 5 years.' He was sentenced accordingly after the overruling of his aftertrial motion. The case involves primarily a construction of § 560.156, RSMo 1959, V.A.M.S., our present 'stealing' statute.

We will not need to state the facts in any great detail, for the single point made is that the court erred in submitting the offense of 'stealing without consent of the owner' when defendant had been charged with 'stealing by deceit.' At the trial defendant was generally referred to by the witnesses as Tony Crabral. Forum Cafeteria, Inc., operates a chain of cafeterias in the Kansas City area; defendant had first been employed at its main downtown cafeteria, but was transferred to the cafeteria at the Antioch Shopping Center in Kansas City North as an assistant manager. He worked as such, largely in learning his duties, on February 14, 15 and 16, 1966, was off on February 17 and 18 (in the regular rotation) and was 'terminated' on February 22 for having failed to report for three days. He was furnished a key to the rather small manager's office and was taught the combination of the safe. He did not receive a key to the outer doors of the cafeteria. Several other employees, including the manager, the first assistant manager, and the office girl also had office keys and the combination of the safe. Some employees were always in the building; at night these consisted of the crew which cleaned up and conducted certain parts of the cooking. Defendant was instructed concerning the evening 'closing-up' process, including the transfer of money from the cashier's cage or desk to the safe, and also about getting change for the cashier from the safe during the day; he had become familiar with the operation of the safe. The manager generally left at from 7:00--8:00 p.m. The assistant manager on duty stayed until 9:00 p.m. or later and admitted the night crew, of which one Jefferson Martin was the foreman. None of that crew had a key to the inner office or the combination of the safe. As indicated, the assistant manager on duty transferred the money to the safe, saw that it and the office door were locked, met the night foreman and, generally, locked the outside door of the cafeteria. It was closed to the public after 8:00 p.m.

Richard Siminis was the first assistant manager at the time in question; he was still in the cafeteria on Friday evening, February 18, 1966, attending to some incidental duties when he saw the defendant in the place at about 9:15; he asked defendant what brought him there and received some rather casual answer. The money had then been put away by Siminis, the safe closed, and the office door locked. Defendant was not on duty at any time during that day or evening. Siminis had not counted the money which he had transferred; he was not permitted to testify to the amount shown on the cashier's tapes, but he did testify that the money he put in the safe was for a full day's operation and that it was more than $1,000.00. This witness saw defendant leave by the customer 'out' door, which was also used by some of the employees who were leaving in the evening.

The night foreman saw defendant in the cafeteria after 11:00 p.m. on the same evening, namely, February 18, 1966. The foreman was engaged in some work in the kitchen and defendant passed by about ten feet from him; he regarded this as unusual so he proceeded to look further or investigate. He testified that he then saw defendant in the manager's office, in front of the safe, either sitting or squatting down and facing the safe; the office door was open and the lights were on. At that time defendant turned and saw the foreman and told him that he had forgotten something and had come back to get it; however, he continued whatever he was doing. The foreman then went back to his work. At the time in question, one of the outer doors was unlocked, since some of the employees had just left.

The next morning the manager discovered that substantially all the money was gone from the safe; apparently $10 to $20 and some change was left. The police were notified and came to investigate. No evidence of any forced entry was found, either to the office or the safe. Defendant never reported back for work, although he was due to do so that morning, February 19.

Counsel for defendant filed a motion for acquittal for the reasons, among others, that the information failed to allege all essential elements and did not notify defendant of the offense charged, and that the evidence failed to establish a stealing by deceit. This was overruled and the case was submitted, as already noted, as one of stealing, taking and carrying away money without the consent of the owner.

Section 560.156 was enacted in 1955. That act replaced many criminal statutes which were thereby repealed and which covered larceny, embezzlement, false pretenses and sundry allied offenses, and also included many definitions. The object was, of course, to eliminate technicalities, errors in charge and proof, and reversals on account of the complicated nature of the existing situation. State v. Wishom, Mo., 416 S.W.2d 921; State v. Gale, Mo., 322 S.W.2d 852; State v. Mace, Mo., 357 S.W.2d 923. While the new statute provided and created a single offense of 'stealing,' it provided further that this could be committed in two different ways. Thus, in Wishom, supra, the court said at 416 S.W.2d loc.cit. 925: 'As noted in the Zammar case (State v. Zammar, Mo., 305 S.W.2d 441), a single offense of stealing is created by the statute. It can be committed in various ways, but there is only a single offense. It covers stealing whether by taking property without one's consent or by means of deceit. It includes, by definition in the statute, 'to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining using, transferring, concealing or retaining possession of his property.' § 560.156, subsec. 1(2).'

This is obvious, for the statute itself prohibits the intentional stealing of another's property, 'either without his consent or by means of deceit.' Thus the statute must be considered as embracing these two subdivisions or methods, which should be differentiated in pleading and proof. We are bound by the act as enacted, and not merely by the general intent to create a single offense. State v. Eye, Mo., 415 S.W.2d 729.

In State v. Kesterson, Mo., 403 S.W.2d 606, in Wishom, supra, in State v. Perkins, Mo., 380 S.W.2d 433, and (indirectly) in State v. Miles, Mo., 412 S.W.2d 473, our court has considered the offense of stealing 'by means of...