State v. Willis
| Decision Date | 14 November 1955 |
| Docket Number | No. 44645,No. 2,44645,2 |
| Citation | 283 S.W.2d 534 |
| Parties | STATE of Missouri, Respondent, v. Albert E. WILLIS, Appellant |
| Court | Missouri Supreme Court |
Wm. J. Gilwee, Kansas City, for appellant.
John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.
The appellant, Albert E. Willis, was convicted by a jury in the Circuit Court of Lafayette County, Missouri of the crime of grand larceny based on an information alleging the theft of twenty journal brass of the value of $120, belonging to Missouri Pacific Railroad Company. Appellant's punishment was assessed at two years in the penitentiary. His motion for new trial was overruled and he appealed. The conviction to be reviewed is a felony and jurisdiction of the appeal is properly in the supreme court. Article V, Sec. 3, Constitution of Missouri 1945, V.A.M.S.
Defendant did not take the stand and no evidence was offered on his behalf. The state's evidence tended to prove that on or about July 7, 1952, between fifteen and twenty refrigerator cars were placed on a siding at Myrick, near Lexington, for the purpose of conditioning them for potato loading. On July 10th it was discovered that 'journal brass' were missing from a number of the cars. Journal brass is a kind of bearing commonly used on the journal or axle of a freight car. Somewhere between twenty and thirty-four of the journal brass were missing. Their value at the time was $6.58 apiece; that is what it would cost to replace each of those taken.
James E. Pratt, Melvin Fields and the appellant were arrested in connection with the theft of journal brass from railroads and on February 17, 1953, the appellant gave and subscribed a written statement which was taken in the office of the Burglary Bureau of the Kansas City, Missouri Police Department by Detective H. D. Coffman. The statement, introduced in evidence as State's Exhibit No. 2, after giving information relating to appellant's name, age and residence, further reads in part as follows:
H. D. Coffman, who had left the Kansas City Police Department and was a lieutenant of police for the Wabash Railroad at the time of the trial, identified the statement, Exhibit No. 2, and testified that he told the appellant and Melvin Fields that there would be but one prosecution in connection with the various offenses in return for their cooperation on the various thefts involved. Coffman testified, however, that he made no promises with respect to the prosecution in Lafayette County. George E. Callen, one of the witnesses to the statement, testified that he was present when the statement was taken and that no promises were made to the appellant by him or any one else. Other of state's witnesses testified that no promises were made, and the question of whether the appellant's statement was voluntary was submitted to the jury under instructions about which no complaint is made.
James E. Pratt, on behalf of the state, testified that he, together with appellant and Melvin Fields, took the brass at Myrick and sold it; that he (Pratt) pleaded guilty, was sentenced to three years in the Missouri State Penitentiary and that he had served his time and had been released.
The appellant undertakes to present these questions on appeal: (1) There was a complete lack of evidence sufficient to convict defendant of grand larceny as a matter of law; (2) The prosecuting attorney in introducing Exhibit No. 2 in evidence and reading the whole statement to the jury committed reversible error in referring to other purported crimes of the defendant, especially when the defendant failed to testify; (3) The prosecuting attorney in asking the direct question of the witness for the state, 'Do you know whether or not this defendant was ever convicted of any related offense any place else?' committed a plain error affecting substantial rights of the defendant, which comes within the purview of Rule 3.27 of the Supreme Court of Missouri, 42 V.A.M.S.
At the onset the appellant concedes that the record is insufficient to preserve these questions properly for review. He asks us to consider them 'plain errors affecting substantial rights', as that term is used in Rule 3.27, and under that guise take cognizance of the alleged errors. Rule 3.27 cannot aid the appellant since the rule is one of civil procedure and is inapplicable to appeals in criminal cases. State v. Stidham, Mo., 258 S.W.2d 620, 621.
In his motion for new trial the appellant charges that there was 'a lack of probative evidence sufficient to convict defendant of grand larceny' in that the state offered no evidence as to the actual value of the property taken from the railroad. In his brief on appeal the appellant contends that the evidence adduced by the state to prove the value of the property alleged to have been taken was 'clearly hearsay'; that such evidence would have been excluded if objected to and without the evidence there would then have been a total failure of proof with respect to the...
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