State v. Wishom
| Decision Date | 10 July 1967 |
| Docket Number | No. 2,No. 52277,52277,2 |
| Citation | 416 S.W.2d 921 |
| Parties | STATE of Missouri, Respondent, v. Calvin WISHOM, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Brunson Hollingsworth, Special Asst. Atty. Gen., Hillsboro, for respondent.
G. Carroll Stribling, St. Louis, for appellant.
Defendant was charged with stealing a motor vehicle by deceit in violation of §§ 560.156 and 560.161 () and with three prior felony convictions. Following a jury verdict of guilty and the necessary findings of prior convictions by the trial judge, defendant was sentenced to imprisonment for eight years, and he appeals.
Defendant was represented in the trial court and on appeal by appointed counsel, who handled the case ably and diligently.
The State's evidence would support the following statement of facts: On or about July 13, 1965, defendant had pending against him a charge of stealing an automobile and he had a conversation with James A. Bell, an attorney in St. Louis, about representing him in that case. Bell agreed to represent him for a fee of $500.00. Defendant had no money then, but Bell had a 1963 Oldsmobile two-door sedan which was in need of certain repairs. The left rear panel and door were damaged and there was a long scratch down the left side. Defendant looked over the car and agreed to repair it and then pay the difference between the cost of repair and the fee of $500.00. Defendant said he could take the car to Garner's filling station where he could repair it, and he knew where he could get a new panel so that he could put the car in tip-top shape. Bell entered his appearance as attorney for defendant, and on August 6, 1965, the car actually was turned over to defendant. Bell was going to Chicago for a few days and defendant represented that the repairs would be made and the car returned to Bell on August 10, when he returned. Bell testified he believed that defendant intended to repair the car and return it to him by August 10.
Bell returned from Chicago, but defendant did not deliver his car. When Bell did not hear from defendant for three or four days, he went by Garner's filling station but found that defendant did not work there. He finally located defendant, who then said that the car was in a shop at Hodiamont and Hamilton. He said he had not completed the reparis and needed a few more days. Bell went by Hodiamont and Hamilton but the car was not there. He then contacted defendant and took him by this location. The car was not there, and defendant told Bell that the man working on the car must have it out testing it. At that point, Bell observed that the license plate off of his Oldsmobile was on the defendant's car. Defendant said he had been using Bell's license plate, but Bell took it off defendant's car and kept it.
Defendant stated that he would have the car back the next day, but he did not. About two days later he called and said that he had located the car, that it had been repaired but it would cost $43.00 for parts. He would return the car as soon as he obtained the parts. After that Bell heard nothing for a week. Defendant then called and told Bell to come out to a service station on Ashland Avenue and bring $43.00 for the parts. Bell went out but neither defendant nor the car was there. The next day defendant called and said that the car was at Wentzville. Bell wanted to go out there but defendant said that only he could get it. He said he would bring the car in, but he did not do so.
On September 26, after defendant had called and said he would deliver the car that morning but failed to do so, Bell withdrew as attorney for defendant in the case then pending. At that time defendant displayed to Bell the car keys and bills for alleged work on the Oldsmobile, but the bills were dated in May and antedated the date when the Oldsmobile had been turned over to the defendant.
In October, Bell filed a complaint against defendant for stealing his automobile. On the day defendant was arrested, Bell saw him at the jail. Defendant told Bell that he would have to give him $925.00 before he would produce the car. He said he had put work and labor in the car, but he refused to show the car to Bell. This was the first time defendant had told Bell that he owed him money on the automobile.
There weeks before trial herein, defendant came by Bell's home one night and said that if he would drive that night to some place near Kansas City, Bell's car was there, but Bell declined to do so.
While defendant was in jail, he told the police officer that he and a deputy sheriff had put Bell's car in a garage but he declined to say where it was, and he stated that he would die before he would give the car up.
The defendant took the stand and testified. We do not recite all of his testimony because, in testing the sufficiency of the evidence to determine whether defendant's motion for a judgment of acquittal should have been sustained, we consider only the evidence favorable to the verdict. '* * * all the substantial testimony tending to support the verdict must be considered as true, and every legitimate inference therefrom favorable to the verdict must be indulged.' State v. Taylor, Mo., 324 S.W.2d 643, 646, 76 A.L.R.2d 671.
A part of defendant's testimony was that he first took Bell's car to Garner's and ordered certain parts, but he didn't have the equipment to install them and hence he took the car to Mr. Jerry Ruffin at United Motor Exchange at 3321 North Union to do the work. He testified that Ruffin repaired the car but would not release it because not paid therefor. He also testified that he then drove the car to Red Bud, Missouri, where he said Ruffin had another shop, to keep Bell from coming to get the car without paying for the work. Jerry Ruffin, in rebuttal, testified that Bell's Oldsmobile had never been in his place for repairs and that he had no shop at Red Bud, Missouri, or any other place outside the City of St. Louis.
Defendant also produced a work order (in the amount of $907.16) which he said he received from Jerry Ruffin for repair of Bell's Oldsmobile. This was introduced as Defendant's Exhibit B. In rebuttal, Jerry Ruffin testified that he had not made out and delivered to defendant the work order marked Defendant's Exhibit B.
Defendant also identified but did not introduce another paper which was marked Defendant's Exhibit A. Defendant testified that this was a bill from Bob Ruffin, a brother of Jerry, located at 4901 Natural Bridge, which was a bill for parts and labor on the Oldsmobile in the total sum of $979.80. In rebuttal, Bob Ruffin testified that he had not worked on the Bell Oldsmobile and that the bill defendant presented from his place of business as being for work on the Bell Oldsmobile actually was a bill he had given to defendant representing a sale to defendant of a 1959 Chevrolet for $120.00, and that the entries thereon relative to a 1963 Oldsmobile had been written by someone else. This paper was marked as State's Exhibit 1 and introduced in evidence.
The original information was filed on October 30, 1965, and was superseded by an amended information filed on November 12, 1965. The case was tried on March 8 and 9, 1966. At the conclusion of all the evidence, the State, over objection of the defendant, was permitted to file a second amended information. The first portion of each information simply recited the prior convictions and need not be set out herein in connection with the contentions made by the defendant. The pertinent portions of the two informations are as follows:
Amended Information
'* * * on August 6, 1965, at the City of St. Louis aforesaid, did unlawfully and feloniously steal, take and carry away by means of certain false pretenses and deceit, to-wit: By pretending to make automobile repairs, which pretenses were made to JAMES BELL, and were false and untrue and were known to be false and untrue by the said CALVIN WISHOM and JAMES BELL, relying on said false statements and pretenses and deceit being deceived thereby was induced to part and did part with goods, wares, chattels, and personal property of JAMES BELL, to-wit: a Motor Vehicle, an automobile Oldsmobile make, 1963 model, with the felonious intent then and there to steal and permanently deprive the owner of the use thereof and convert the same to his own use by means of deceit; * * *.'
'* * * on or about the 6th day of August, 1965, at the City of St. Louis, Missouri, defendant and one James A. Bell, Attorney at law, did enter into an agreement, the gist of which agreement was that Mr. Bell would represent defendant in a criminal charge, and that, in lieu of paying Mr. Bell a fee, defendant would repair the 1963 Oldsmobile 98 two door automobile mentioned in evidence and would return said automobile to James A. Bell on or before the 10th day of August, 1965, and that although demand was made by said James A. Bell for the return of said automobile on numerous occasions since the 10th day of August, 1965, defendant failed, neglected and refused, and continues to fail, neglect and refuse, to return said automobile to James A. Bell, and in so doing, defendant did conceal and retain possession of said automobile by exercising domain over the automobile in a manner inconsistent with the rights of James A. Bell, the owner thereof, with the felonious intent thus and thereby to steal and permanently deprive the owner of the use of said automobile by means of deceit; * * *.'
The primary contention by defendant on appeal is that the trial court erred in permitting the State, at the conclusion of all the testimony, to file its second amended information 'because the second amended information set forth a new and different offense from that charged in the amended information upon which the case was tried and substantial rights of defendant were thereby...
To continue reading
Request your trial
-
State v. Wing
...line. When the evidence is viewed in the light most favorable to the state, State v. Watson, Mo., 350 S.W.2d 763, 766(1); State v. Wishom, Mo., 416 S.W.2d 921, 923(1), it cannot be said as a matter of law that the evidence is not sufficient to sustain the judgment of conviction. Criminal Ru......
-
State v. Smith, 48641
...The court did not err in overruling his motion for judgment of acquittal. State v. Russell, Mo., 265 S.W.2d 379, 381(3-5); State v. Wishom, Mo., 416 S.W.2d 921, 926(5)." (pp. Based upon the foregoing discussion we find there is a natural and rational evidentiary relationship between the use......
-
State v. Morris
...therefrom favorable to the verdict must be indulged.' State v. Taylor, Mo., 324 S.W.2d 643, 646, 76 A.L.R.2d 671.' State v. Wishom, Mo., 416 S.W.2d 921, 923. Where, as here, defendant has offered evidence, submissibility of the case will be determined on the entire evidence. State v. Sykes,......
-
State v. Jones
...(Mo.1966), and to simplify prosecutions of persons for wrongful and criminal acquisition of the property of others. State v. Wishom, 416 S.W.2d 921, 925 (Mo.1967). To narrowly construe the statutes under which this prosecution is laid would, in our opinion, be in conflict with the legislati......