The State v. Boguslaw
| Decision Date | 18 February 1922 |
| Citation | 237 S.W. 114,292 Mo. 218 |
| Parties | THE STATE v. SAM BOGUSLAW, Appellant |
| Court | Missouri Supreme Court |
Appeal from Boone Circuit Court. -- Hon David H. Harris, Judge.
Affirmed.
Harris & Price for appellant.
(1) The court erred in giving instruction number two on the part of the State. State v. Kelly, 9 Mo.App. 514; State v. Wingo, 66 Mo. 181; State v. Bruin, 34 Mo 514; State v. Castor, 93 Mo. 250; State v Drew, 179 Mo. 324; State v. Scott, 109 Mo. 226; State v. Ebbeller, 222 S.W. 396; State v Henderson, 231 S.W. 596; State v. Blocker, 231 S.W. 1062; Wharton on Crim. Ev. sec. 758; 3 Greenleaf on Evidence, sec. 32. (2) The court erred in refusing to sustain the demurrer offered by defendant at the close of all the evidence. There was no substantial evidence upon which to base the verdict of the jury. State v. Kelsay, 228 S.W. 754; State v. Nave, 222 S.W. 744; State v. Adkins, 222 S.W. 432; State v. Hollis, 225 S.W. 952; State v. Anderson, 225 S.W. 896; State v. Welton, 225 S.W. 965; State v. Ruckman, 253 Mo. 488; State v. Francis, 199 Mo. 693; State v. Jaeger, 66 Mo. 179; State v. Packwood, 26 Mo. 363. (3) The verdict of the jury is unsupported by the evidence and is manifestly the result of prejudice, passion and partiality. R. S. 1919, sec. 4078; State v. O'Kelly and Fitch, 258 Mo. 351; State v. Webb, 254 Mo. 414; State v. Prendible, 165 Mo. 353; State v. Primm, 98 Mo. 368; State v. Castor, 93 Mo. 243; State v. Jaeger, 66 Mo. 173; State v. Burgorf, 53 Mo. 65; State v. Marshall, 47 Mo. 378; State v. Daubert, 42 Mo. 238; State v. Mansfield, 41 Mo. 70; State v. Brosius, 39 Mo. 534; State v. Packwood, 26 Mo. 340.
Jesse W. Barrett, Attorney-General, and Robert J. Smith, Assistant Attorney-General, for respondent.
(1) The court did not err in giving instruction number 2 on the part of the State. This instruction is a proper declaration of the law and follows the instructions approved by this court. State v. Good, 132 Mo. 125; State v. Levy, 262 Mo. 191; State v. James, 194 Mo. 277; State v. Moore, 101 Mo. 324, 330; State v. Burns, 263 Mo. 599; State v. Prunty, 276 Mo. 374; State v. Baker, 264 Mo. 355. (2) The court properly refused to sustain the demurrer at the close of all the evidence. The record discloses that there is substantial evidence upon which to submit the case to the jury. State v. Fields, 234 Mo. 626; State v. James, 216 Mo. 407; State v. Wooley, 215 Mo. 687; State v. King, 214 Mo. 390; State v. Stewart, 127 Mo. 293; State v. Concelia, 250 Mo. 420; State v. Taylor, 261 Mo. 228. (3) The verdict of the jury is supported by the evidence. State v. Rumfelt, 228 Mo. 443; State v. Taylor, 261 Mo. 228; State v. Concelia, 250 Mo. 424; State v. Rowe, 180 S.W. 884; State v. Shout, 263 Mo. 360.
WHITE, C. Railey and Reeves, CC., concur.
The appeal is from a judgment upon a conviction of grand larceny. The defendant was charged with stealing the automobile of one J. B. Hopper, of Columbia, Missouri, on the tenth day of December, 1920.
Hopper testified that he lived in Columbia and was the owner of a Hudson Super-Six speedster, valued at twenty-five hundred dollars; that he put it in his garage about four o'clock in the afternoon of December tenth, 1920, and locked the garage with a cheap lock, which cost about thirty-five cents. He and his wife went away for the evening, returning home about nine o'clock. The next afternoon, December 11, about 5:30 or six o'clock Hopper's wife went to the garage to get a laprobe which had been left in the car, and the automobile was gone, the garage being still locked. Four or five days later the car was returned to him by the sheriff and Mr. Rowland. The license numbers still were on the car, and apparently no attempt had been made to alter or remove any marks of identification.
Edward J. Lally, a detective sergeant in the City of Saint Louis, testified that he arrested the defendant December 13, 1920, about 9:40 at night, while in possession of Hopper's car. The officer was attempting to trace another car by a number similar in some of the figures to the car in question. The car was standing at Fourteenth and Lyndon streets; Boguslaw came out and started to get in the car, when the officer asked him his name; he said it was Marks. Lally asked him where he got the car and defendant said he bought it; he was asked if the license was in his name and he said it was. He was arrested and locked up, and it was found that the license number was issued to Mr. Hopper of Columbia. After the officers communicated with Hopper the defendant was brought in and told the car was stolen at Columbia, Missouri. Boguslaw then explained that he had answered an advertisement of a car for sale, and he met a man at Grand and Olive and paid him fifteen hundred dollars for the car. Lally asked him to show the bill of sale. Boguslaw said he didn't have it. He said a lady notary public at the Maryland Hotel took the acknowledgment, and he paid fifteen hundred dollars for the car in her presence; said he would produce the bill of sale at the proper time. The defendant further said he had bought the car about a week prior to his arrest, which was December 13th. The evidence showed that the Maryland Hotel was from a mile and a half to two miles and a half from Grand and Olive where the defendant said he met a man from whom he bought the car. He was also asked by the officer where he got the money to pay for the car. He said he won it shooting craps. It was a cash purchase.
Officer William B. Ryan, a detective sergeant, who was in company with Lally when defendant was arrested, related the same circumstances about the arrest and the fact that the defendant said the car license was in his name and his name was Marks. The officer knew him and told him his name was Boguslaw, a gangster, and running around with highway robbers and thieves. The next day in a conversation the defendant said he bought car; that he answered an ad. a week previous to his arrest, met a man at Grand and Olive and paid him fifteen hundred dollars in cash for the car. The defendant said he had a bill of sale but never produced it. Upon investigation by the officer it was found there was only one notary public at the Maryland Hotel, a Miss Rilla E. Bowles. Afterwards, the Sheriff of Boone County came from Columbia, sufficiently identified the car as Mr. Hopper's car and took it away.
The sheriff, Mr. Whiteside, and Mr. Rowland drove the car back to Columbia, taking the defendant along. The defendant showed considerable familiarity with the road on the way to Columbia, as if he had traveled it recently and was acquainted with a certain temporary detour on the way.
Defendant did not take the stand in his own behalf, but he introduced one G. H. Chautin who testified that he had known the defendant since childhood; that on or about December 11, 1920, he got into conversation with the defendant in the lobby of the American Hotel and went to lunch with him. While they were at lunch the defendant was paged, but witness continued to eat his lunch. Finally he went up stairs and found the defendant talking to a party whom he introduced by the name of Hopper. Something was said about buying a car from Hopper, and witness was asked if he wanted to take a little ride while Hopper demonstrated the car. They drove around the city, stopped in front of a house on Olive Street while Boguslaw got out and rang the door bell. A gentleman came down stairs and was introduced by defendant as a Mr. Stacey. Stacey looked the car over, and the three, Stacey, Hopper and Boguslaw, talked together while witness sat in the car. They then went to an automobile concern and Boguslaw went inside, he said, for the purpose of finding out in whose name the license was issued. They drove to the Maryland Hotel where Stacey, Hopper and Boguslaw got out of the car and went inside; presently they returned and then went to Judge Gozalla's office where they drew a bill of sale and asked Chautin to witness it. The bill of sale then was signed, and Boguslaw paid fifteen hundred dollars in one-hundred-dollar and fifty-dollar bills to Mr. Hopper. They then got in the car and took Mr. Hopper to the Maryland Hotel, left him and continued to drive around town.
J. Waters Stacey was offered as a witness by the defendant. He testified that the defendant appeared at his place with a car and said a fellow wanted to sell it to him for eighteen hundred dollars. Stacey being familiar with cars looked it over and advised the defendant not to pay eighteen hundred dollars for it, that it was worth only fifteen hundred, and the bargain finally was struck between Boguslaw and Hopper for the sale at fifteen hundred. They then went to Judge Gozalla's office, a bill of sale was made out, defendant signed it, and Stacey and Chautin signed it as witnesses.
A bill of sale was introduced dated December 11, 1920. It was in regular form, transferring from John B. Hopper to Sam Boguslaw one dark blue Hudson Sport model, Model "O" 1920, motor number 3027, license number 207,971. The seller certified that he was the owner and had the right to sell same, and that it was free from any encumbrance. The instrument was witnessed by J. W. Stacey, 4244 Olive Street, and J. Chautin, 1109 O'Fallon Street. It was acknowledged December 11, before Andrew Gazotto, Jr., notary public. The acknowledgment, in the usual form, recited that John B. Hopper of Columbia, Missouri, was known to the notary as the person described in, and who executed, the instrument.
The defendant also introduced an advertisement published in the Globe-Democrat of December 4, as follows:
This was...
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