State v. Wright

• Citation: 95 S.W.2d 1159,339 Mo. 41
• Parties: The State v. Jack Wright, Appellant
• Decision Date: 30 June 1936
• Court: United States State Supreme Court of Missouri

95 S.W.2d 1159

339 Mo. 41

The State v. Jack Wright, Appellant

Supreme Court of Missouri

June 30, 1936

Appeal from Clay Circuit Court; Hon. Ralph Hughes, Judge.

Reversed ane remanded.

Lillie Knight for appellant.

Roy McKittrick, Attorney General, Wm. W. Barnes and Wm. Orr Sawyers, Assistant Attorneys General, for respondent.

Westhues C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant in this case was convicted of the crime of burglary and larceny from a dwelling house and sentenced to serve seven years' imprisonment in the penitentiary for the burglary and four years' for the larceny. Being unsuccessful in obtaining a new trial he appealed. Appellant in this case is the same person as the appellant in cases numbers 34528 and 34512.

In this, as in the other cases, the son of appellant, Garland Wright, testified against his father. The crime in this case as in the previous cases, was committed in Clay County Missouri. Garland Wright testified that on the evening of March 11, 1934, appellant and Lemar Portwood and the witness drove from Kansas City into Clay County along Highway No 169, for the express purpose of stealing property from some place where the owners were not at home; that as they passed the house of one Scott they noticed that there were no lights and apparently no one at home; that appellant and Portwood got out of the car and proceeded towards the house; that the witness drove down the highway, as per instructions from his father, and returned within about thirty minutes; that he found his father and Portwood in the front yard with some rugs, a radio and a couple of sacks of things which they loaded into the car; that about this time they saw a car coming down the highway so they left in a hurry, and as they drove toward Kansas City the two sacks, which had been placed on the fender, fell from the car.

Rosa Scott testified that she was the owner of the premises and that she and her son and daughter had left the home on the evening in question to attend church; that when they returned they noticed a car leaving the premises and on discovering that the house had been burglarized the son drove his car down the highway in an attempt to overtake the persons whom they had seen leave their home. He found the two sacks which contained clothing and wearing apparel belonging to his mother. He reported the theft to the police department in Kansas City. Rosa Scott testified that when they left the home in the evening all the doors were fastened, but when they returned they found the front door open. A number of the rugs were found at an auction house in Kansas City. The keeper of this auction house testified in rebuttal that appellant had collected the money for the rugs which belonged to Mrs. Scott.

A number of questions have been presented for our review. Appellant contends that the testimony of the owner of the auction house was not proper rebuttal and should have been introduced by the State before the defendant put on his evidence. Such matters are largely within the discretion of the trial court. We believe the evidence ought to have been introduced by the State before the defendant offered his evidence. It was evidence in chief and on a retrial this rule can be observed. We are not holding that the violation of this rule in this case was reversible error.

Appellant also urges that the evidence was insufficient to sustain a verdict of guilty. To this we cannot agree. While no one saw appellant breaking into the home of Rosa Scott, or taking property therefrom, the facts and circumstances in the case, if believed by the jury, showed appellant to have been guilty beyond question. The evidence showed that all the doors of the home were closed before its occupants went to church. Appellant and Portwood went to the home for the express purpose of committing larceny therein. Appellant was found in possession of the property taken therefrom and he collected the money at the storage house where the property was sold, so that the contention that the evidence was insufficient is without merit.

The record discloses that the indictment returned in this case by the grand jury charged that appellant had burglarized the home of one R. Winfield Scott. The record further shows that upon the application of the prosecuting attorney the indictment was amended by striking therefrom the name of R. Winfield Scott and inserting in lieu thereof the name Rosa Scott. The evidence does not show that R. Winfield Scott was the same person as Rosa Scott. We infer that they are not one and the same person. In fact the record shows that they were not. There was a witness by the name of J. Winfield Scott who was the son of Rosa Scott, but there was no evidence that R. Winfield Scott, as mentioned in the indictment, was the same person as J. Winfield Scott. Appellant has complained of this in his motion for new trial.

Section 3508, Revised Statutes 1929 (4 Mo. Stat. Ann., p. 3131) authorizes the prosecuting attorney, with permission of the court, to amend any affidavit or information in matter of form or substance at any time before the trial. ...