The State v. Cummins
| Decision Date | 05 July 1919 |
| Citation | 213 S.W. 969,279 Mo. 192 |
| Parties | THE STATE v. RAY H. CUMMINS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Victor H Falkenhainer, Judge.
Affirmed.
Charles A. Houts for appellant.
(1) It is not admissible, upon the trial of an indictment for burglary or larceny, to introduce evidence of other burglaries or larcenies. State v. Daubert, 42 Mo 242; State v. Spray, 174 Mo. 569; State v Boatright, 182 Mo. 33. (2) Where, by exception to the general rule, evidence of other crimes is admitted to show a common scheme or plan, such evidence of other crimes must in fact tend to establish a common scheme or plan; otherwise, such evidence is not admissible. State v. Hyde, 234 Mo. 200. (3) Evidence of other burglaries by Frank (an alleged co-conspirator) was not admissible for the purpose of proving the existence of a conspiracy between him and the defendant. 3 Bishop New Criminal Procedure, sec. 229; Metcalfe v. Conner, 12 Am. Dec. (Ky.) 340. (4) It is error to instruct that a defendant charged with a felony can be convicted upon the uncorroborated testimony of an accomplice. State v. Wilkins, 221 Mo. 444.
Frank W. McAllister, Attorney-General, and Shrader P. Powell, Assistant Attorney-General for respondent.
(1) The verdict meets the statutory requirements in every particular. State v. Blockberger, 247 Mo. 606; State v. Kinney, 190 S.W. 306; State v. Conway, 241 Mo. 276. (2) The court did not err in permitting the State to introduce evidence of the commission of other burglaries and larcenies for the purpose of showing the intent and a common scheme and plan. State v. Myers, 82 Mo. 558; State v. Bailey, 190 Mo. 280; State v. Spaugh, 200 Mo. 594; State v. Kinney, 190 S.W. 306; State v. Patterson, 271 Mo. 109; State v. Lewis, 273 Mo. 530; State v. Othick, 184 S.W. 108. It is proper to introduce testimony showing that the defendant and others combined and confederated together for the commission of a series of criminal acts, even though a conspiracy is not charged in the indictment. State v. Collins, 181 Mo. 261; State v. Rock, 194 Mo. 432; State v. Vaughan, 203 Mo. 670; State v. Casto, 231 Mo. 408; People v. Micelli, 142 N.Y.S. 104. (3) The action of the trial court in overruling defendant's motion to require the State to elect upon which count or charge in the indictment it would stand, was erroneous. State v. Sutton, 64 Mo. 108; State v. Carrigan, 210 Mo. 366; State v. Pace, 269 Mo. 686; State v. Christian, 253 Mo. 393. (4) The evidence adduced on the trial is amply sufficient to sustain the verdict returned by the jury. State v. Concelia, 250 Mo. 420; State v. Maurer, 255 Mo. 168. (5) Instruction number one properly defined the crime of burglary and larceny. State v. Fields, 234 Mo. 623; State v. Shout, 263 Mo. 373; State v. Walker, 98 Mo. 104. Instruction number five which announces the law relative to knowingly receiving stolen property is in an approved form. State v. Sakowski, 191 Mo. 642; State v. Kosky, 191 Mo. 1. Instruction number six clearly defined the terms "common design" and "conspiracy." State v. Walker, 98 Mo. 95; State v. Lewis, 273 Mo. 534; Kennish v. Safford, 193 Mo.App. 372. By instruction number eight the jury was advised that they could consider evidence of receiving stolen property other than the particular instance charged in the indictment only for the purpose of showing intent and is fully sustained by the authorities. State v. Patterson, 273 Mo. 110; State v. Spaugh, 200 Mo. 594. The jury was likewise advised by instruction number 8-A, that evidence of other burglaries and larcenies was admitted for the sole purpose, and could be considered only in determining whether a common design and scheme existed between the defendant and the witness Franke. State v. Bailey, 190 Mo. 284; State v. Lewis, 273 Mo. 530. Instruction number nine and ten clearly stated the law relative to the rule for weighing the testimony of an accomplice. State v. Donnelly, 130 Mo. 649; State v. Kosky, 191 Mo. 9; State v. Bobbitt, 215 Mo. 42.
RAILEY, C. White and Mozley, CC., concur. Faris, J., concurs in result.
On September 29, 1917, the grand jury of the City of St. Louis, returned into open court an indictment in two counts, charging defendant, Ray Cummins, in the first count, with burglarizing the house of Jessie Bennett and Charles Bennett on June 5, 1916, and also with stealing therefrom certain articles of jewelry of the total value of $ 442.50. The second count of the indictment charged defendant with receiving stolen property. On January 7, 1918, defendant waived formal arraignment and entered a plea of not guilty. He filed a motion to require the State to elect, as to which count it would proceed to trial, and this motion was overruled.
On January 8, 1918, the trial was commenced, a jury impaneled and after hearing the evidence and receiving the instructions of the court, a verdict was returned, finding the defendant guilty of burglary in the second degree and larceny as charged in the first count of the indictment, and assessing his punishment at five years' imprisonment in the State Penitentiary for the burglary and five years additional for the larceny. After unsuccessful motions for a new trial and in arrest of judgment, the court pronounced sentence in accordance with the terms of the verdict. Thereupon defendant was granted an appeal to this court.
The testimony submitted on the part of the State tends to show that the defendant was, at the time of the commission of the crime charged, a police officer in the City of St. Louis, and had been for nine or ten years prior to 1915. During the month of December, 1915, he became acquainted with one George Franke, a professional house-breaker, and entered into an agreement with Franke, by which he (defendant) was to share in the proceeds of the loot or stolen plunder, in return for the protection from arrest he was to accord to Franke. The evidence shows that some time during the month of December, 1915, Franke met defendant at the home of a Mrs. Enyart, located at 3324 Vincent Avenue, and that a Mrs. Champagne and a Mrs. Edna Stevens were at the Enyart place at the time. The two first-named women had, for some years prior to the date above mentioned, been receiving from Franke stolen property, and the last-named woman conducted a house of ill repute at 730 Carpenter Street. The arrangement seems to have been for the defendant to suggest to Franke certain houses to burglarize, and to keep the latter advised as to the actions and efforts of the police in trying to locate the guilty parties. At the suggestion of defendant, Franke rented a room at 3740 Olive Street and lived there for a number of months with a woman named Sybil White. After Franke would burglarize a home, according to plan, he would bring the loot either to 3740 Olive Street or to the home of Mrs. Enyart, and at one or the other of these places, with defendant Cummins and usually Mrs. Enyart and Mrs. Champagne present, the plunder would be divided; that Cummins had first pick, and would select out such articles as he desired, some of which he would turn over to either Mrs. Enyart or Mrs. Champagne, both of whom were his particular friends. Quite a number of homes were burglarized, and the stolen property, is claimed, was divided between this defendant and the other parties above mentioned, for a period extending from December, 1915, until about the 12th of July, 1916, at which time Franke and the White woman were arrested by officers Hunt and Flavis at Grand and Olive. When they were arrested, the testimony discloses, each of them told the officers to tell "Ray" or get word to "Ray" and, upon inquiry, the officers ascertained that they meant "Ray Cummins." According to the testimony of the above officers, they reported to defendant the above remarks made by Franke and the White woman, and suggested to defendant that he ascertain their street address. Both officers said that, at defendant's suggestion, they remained some distance away while he entered into a private conversation with Franke, and reported to them that he was unsuccessful in obtaining the desired information.
Both Franke and Sybil White testified that they had an arrangement with Cummins whereby, in the event of their arrest, they would get word immediately to the defendant, and he would see that they were taken care of. The testimony discloses that defendant visited both Franke and the White woman in the holdover, and also at the jail, and sent them packages containing clothing and other articles several times. He also promised to secure a lawyer, and to see that Sybil White was released on bond. There is also evidence tending to show that defendant went to a room at 3824 Penrose Street, which was occupied by Franke and Sybil White at the time of their arrest, and took from their room several valises full of stolen property, which remained there at the time they were confined in jail. George Franke pleaded guilty to the charge made against him, and was sentenced to the penitentiary. While confined there, he testified that defendant, in company with one Crites, visited him and promised to see that he was released.
A considerable number of articles alleged in the indictment to have been stolen from the Bennett home, as well as a number of articles stolen from the homes of other people in St. Louis, were identified at the trial, as articles which Franke had turned over to the defendant, and by the latter turned over to Mrs. Enyart. A number of these articles had been recovered by the police from the Enyart home, where some of them were found hidden in a box under a trap door in the floor at that place, and some of them were recovered from pawn shops....
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