The State v. Caudle
| Decision Date | 11 June 1923 |
| Citation | 252 S.W. 701,299 Mo. 372 |
| Parties | THE STATE v. L. D. CAUDLE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Orin Patterson, Judge.
Reversed and remanded.
C. H Jackson and O. E. Gorman for appellant.
(1) No preliminary examination as contemplated by the Constitution and statutes was accorded the defendant. The pretended preliminary examination was held before Thos. R. Gibson judge of the municipal court within and for Springfield and ex-officio justice of the peace within the limits of the city of Springfield only by virtue of his being municipal judge. The defendant was accorded a preliminary examination on an entirely different charge before the said Gibson than the one he was herein convicted for. Sec. 201, p. 504, Laws 1913; Sec. 1, p. 224, Laws 1913; Secs. 3746, 3759, R. S. 1919. (2) The evidence showed that some other person than defendant had actually stolen the car and the court had no jurisdiction of the offense. Sec. 3685, R. S. 1919; State v. Mintz, 189 Mo. 268; Secs. 3723, 3724, R. S. 1919. (3) The remarks of the assistant prosecuting attorney before the jury were highly prejudicial and improper. The remarks that the defendant had a certain Hudson car on which the numbers were changed; that the defendant had another stolen car in his possession, referring to the Hudson car, when there was no evidence that the defendant had any stolen Hudson automobile and the attorney well knew that there was not the slightest bit of evidence that the defendant had any such car in his possession, nor the slightest foundation upon which to base such a statement; the statement that the defendant's witnesses in the State of Texas were not reputable and that they helped him to steal the car, and the further statement that he might try Mr. Bibb next, all were highly prejudicial to the rights of defendant. State v. Burns, 228 S.W 766; State v. Jackson, 95 Mo. 652; State v. Spray, 174 Mo. 569; State v. Saunders, 232 S.W. 973; State v. White, 223 S.W. 683.
Jesse W. Barrett, Attorney-General, and Henry Davis, Assistant Attorney-General, for respondent.
(1) Since a defendant who steals property in a foreign state and brings it into this State may be tried in the same manner as if the property had been stolen within this State, a preliminary hearing based upon a complaint alleging that the property was stolen in this State will support an information which charges the original taking to have been in another state. Sec. 3685, R. S. 1919; State v. Mintz, 189 Mo. 268, 289. (2) A municipal judge in a city of the second class is ex-officio a justice of the peace with jurisdiction to conduct the preliminary examinations of persons charged by the State with the commission of a felony. Sec. 8163, R. S. 1919. (3) Where the evidence of the larceny is that the defendant was found in possession of the stolen property four months after the theft of it, and there is also evidence of an incriminating statement made by the defendant, it is sufficient to warrant a conviction. (4) The giving of an instruction which tells the jury that the recent and unexplained possession of stolen property raises a conclusive presumption of guilt unless explained, is a comment on the testimony and constitutes reversible error. State v. Swarens, 241 S.W. 935; State v. Tracy, 243 S.W. 177. (5) It is not error for the prosecuting attorney in his opening statement at the trial of one charged with larceny to tell the jury that the proof will show at the time alleged the defendant was in possession of stolen property other than that for which he was being tried. State v. Moore, 101 Mo. 316; State v. Flynn, 124 Mo. 480, 482; State v. Smith, 250 Mo. 350, 368; State v. Patterson, 271 Mo. 99, 109.
On November 24, 1920, the Prosecuting Attorney of Greene County, Missouri, filed in the criminal court of said county, a verified information, which, without caption and signature, reads as follows:
On December 17, 1920, defendant filed a verified plea in abatement, in which the trial court was asked to abate the information on the ground that said defendant had never been accorded a preliminary examination as the law requires on the identical charge in the information. The trial court, after hearing the evidence submitted in behalf of defendant on said plea in abatement, overruled the same and, on December 18, 1920, defendant filed a motion to quash said information, for the alleged reason that it did not state facts sufficient to constitute any crime against the laws of the State of Missouri. Said motion to quash the information was likewise overruled. The defendant was duly arraigned and entered his plea of not guilty. He was tried before a jury at the November term, 1920, of said criminal court, and, on the 18th day of December, 1920, the jury returned into said court the following verdict:
"We, the jury, find the defendant guilty in manner and form as charged in the information, and assess his punishment at a term in the State Penitentiary of two years."
Defendant, in due time, filed motions for a new trial and in arrest of judgment, both of which were overruled. Thereafter, the court rendered judgment and pronounced sentence on defendant, in accordance with the terms of said verdict; and from the judgment aforesaid, he was granted an appeal to this court.
The evidence on behalf of the State tended to show, that on the night of June 6, 1920, the Buick automobile of C. M. Portwood was stolen from his garage in the town of Snyder, in the State of Oklahoma; that the engine number placed on this car by the manufacturer was 552001; that about the middle of October, 1920, the defendant drove said Buick automobile from Wichita Falls, in the State of Texas, to Springfield, in Greene County, Missouri, where it remained until taken by Clarence Welch, chief of police of said city of Springfield. On October 25, 1920, defendant was arrested on the written complaint of H. L. Lamb, which charged him with the larceny of said car, in the city of Springfield, Missouri, on the day of June, 1920. On November 4, 1920, defendant was given a preliminary examination, before Thomas R. Gibson, municipal judge, and ex-officio justice of the peace of the city of Springfield, in the County of Greene and State of Missouri, and the defendant, upon said examination, was held to appear before the criminal court of Greene County aforesaid, to answer said charge. It appeared from the State's evidence that the number of said Buick car was examined at Springfield, and that the number on the engine of said car was found to have been changed, so as to make it appear 520007 instead of 552001, placed thereon by the manufacturer. Snyder, Oklahoma, was approximately seventy-five miles from Wichita Falls, Texas.
The chief of police testified that defendant, in speaking of Welch's former effort to arrest him, said: "If you had got me when you was after me you would got me with my breeches down, but I am fixed for you now."
The evidence on behalf of defendant, tended to show, that he was born in Wright County, Missouri, and lived in Greene County aforesaid for about twenty-six years, during which time he worked for a railroad; that about the 1st of October, 1920, he purchased the automobile in controversy from W. Lindsay Bibb, a practicing lawyer in Wichita Falls, Texas, who claimed to be the owner thereof; that on July 13, 1920, B. L. Wirt sold the automobile in question to W. Lindsay Bibb for $ 1450, and executed a bill of sale therefor; that on July 13, 1920, said Bibb made application for a license for a Buick automobile with engine number 520007 thereon, and that he operated said car in Wichita Falls until the same was traded to defendant; that defendant had known Bibb as a practicing lawyer for about five years, and said that he was a man of good reputation.
The defendant testified that he had never been in Snyder, Oklahoma; that he did not steal the car in question, and did not know the engine number of same had been changed, until he learned it from Chief of Police Welch, at Springfield, Missouri; that in June, 1920, he was in the hotel business at Wichita Falls; that the car claimed by C. M. Portwood as his own, was the same car which Bibb operated at Wichita Falls for three months and sold to appellant, who drove it to Springfield, Missouri.
The instructions and rulings of the court will be considered, as far as necessary, in the opinion.
I. It is contended by appellant that his plea in abatement should have been sustained on the alleged ground that no legal preliminary examination was accorded him under the Constitution and Statutes of Missouri.
Springfield is a city of the second class, and is located in Greene County, Missouri. Thos. R. Gibson was the municipal judge and ex-officio justice of the peace, in said city. He had jurisdiction within the limits of said city, as to crimes and misdemeanors. [Sec. 8163, R. S. 1919.] Under this section of the...
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