The State v. Grubbs

• Decision Date: 20 December 1926
• Docket Number: 27528
• Citation: 289 S.W. 852,316 Mo. 243
• Parties: The State v. John Grubbs, Appellant
• Court: Missouri Supreme Court

289 S.W. 852

316 Mo. 243

The State v. John Grubbs, Appellant

No. 27528

Supreme Court of Missouri

December 20, 1926

Appeal from Christian Circuit Court; Hon. Fred Stewart Judge.

Affirmed.

Moore & Moore for appellant.

(1) Evidence, oral in character, that a search warrant was issued in Oklahoma, to search the residence of the defendant, and that such residence was searched thereunder, is reversible error, as the same is the proof of a judicial record, by oral evidence, without a showing made, that the evidence (original) was lost or destroyed, or not capable of being produced by properly authenticated copies. State v Shirley, 233 Mo. 335; State v. Dougherty, 106 Mo. 182; Wharton's Crim. Evidence (8 Ed.) p. 129; Hess v. State, 202 P. 310; Sugar Valley Land Co v. Johnson, 85 So. 871. (2) As a general rule, on trial for burglary and larceny, the State cannot prove the commission by defendant of other crimes of like character not in any way connected with the offense charged in the information, and evidence thereof is prejudicial. State v. Hale, 156 Mo. 102. However, if both offenses are in reality parts of the same transaction, or otherwise connected, or go to show the whereabouts of defendant at the time of the alleged offense charged, or tend to connect defendant with the crime charged, then such evidence is admissible. State v. Tookey, 203 Mo. 674; State v. Bates, 182 Mo. 70; State v. Sherman, 264 Mo. 374; State v. Hyde, 234 Mo. 200. And to bring evidence within the exception to the general rule there must be some connection between the two offenses, nor can the same be justified on the theory of guilty knowledge.

North T. Gentry, Attorney-General, and Alexander M. Meyer, Special Assistant Attorney-General, for respondent.

(1) The evidence, though circumstantial, was sufficient. The breaking of the building described, the carrying away of the property described from the building, and the ownership of both were shown. It was shown that defendant had been in recent and unexplained possession of many articles taken from the building which were traced from the defendant to the officers who recovered them, and from the latter to the prosecuting witness, who positively identified them by private marks. Other goods found in the possession of defendant and in the house where he had lived at the time of the robbery, were shown to fit the description of goods taken from the burglarized building. The theory of the State as to the plan and means by which the crime was carried out was consistent throughout and with the evidence. The defendant offered no theory of his own and the jury were at liberty to adopt that of the State. (2) No error was committed by the court in admitting evidence of the finding of some of the property alleged to have been stolen in defendant's home in Sapulpa, under a search warrant. (a) Defendant waived his objection, if any, to the manner in which the evidence was acquired and to the form of the search warrant by failure to file a sufficient and timely motion to suppress evidence. State v. Pomeroy, 130 Mo. 498; State v. Sharpless, 212 Mo. 176; State v. Owens, 259 S.W. 102. Defendant knew of the search of his home and was present at the time and knew, therefore, that the evidence existed and cannot plead surprise. (b) Rules governing admission or rejection of evidence are those of the forum, and the law of Oklahoma, even had it been invoked by a proper manner by appellant, is inapplicable. This rule extends to all matters of procedure. Dicey's Conflict of Laws (2 Ed.) p. 708. (c) The oral objections to the admission of evidence in question were not germane to the objection now made that the search warrant was a judicial document which could not be proved by parol; hence objections to the admission of the evidence on this ground have been waived.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On January 8, 1926, the Prosecuting Attorney of Christian County filed in the circuit court of said county a verified information, which, omitting formal parts, reads as follows:

"Omer E. Brown, Prosecuting Attorney within and for the County of Christian in the State of Missouri, informs the court that on or about the day of February A. D. 1925, at the said County of Christian, State aforesaid, John Grubb (alias John Foster) did then and there into a certain store, shop and building of the J. W. Clemons & Son Hardware Store, a partnership composed of J. W. Clemons and Leslie Clemons, there situate and being, feloniously and burglariously, forcibly did break and enter, with felonious intent then and there and thereby to feloniously and burglariously steal, take and carry away certain goods, wares and merchandise and other valuable things the personal property in said store, shop and building, then and there kept and deposited in the said store, shop and building, two Ever-ready flash-lights of the value of $ 2, two Yale flash-lights and batteries of the value of $ 5, and Yale and Ever-ready bulbs of the value of $ 1 and W. R. Case & Sons pocket cutlery of the value of $ 10, Remington pocket cutlery of the value of $ 5, safety razors of the value of $ 5, silverware of the value of $ 10, hack-saw blades and hack saws of the value of $ 5, one double-barrel shotgun of the value of $ 20, of the personal goods of J. W. Clemons & Son, a partnership in the said store, shop and building, then and there found, then and there feloniously and burglariously did steal, take and carry away with felonious intent then and there to permanently deprive the owner of the use thereof against the peace and dignity of the State."

Defendant waived formal arraignment and entered a plea of not guilty. Thereafter, on January 26, 1926, upon a trial before a jury, the latter returned into court the following verdict:

"We, the jury find the defendant, John Grubb, alias John Foster, guilty of burglary in the second degree and assess his punishment at seven years in the state penitentiary, and we further find the defendant, John Grubbs, alias John Foster, guilty of grand larceny, also, and in addition to the punishment for burglary we assess his punishment for the larceny at imprisonment in the state penitentiary for three years."

Thereafter, on the following day, defendant filed his motion for a new trial, which was overruled, allocution granted, judgment rendered, sentence pronounced in conformity with the verdict, and an appeal allowed defendant to this court.

Counsel for respondent have made a full and fair statement of the evidence, as disclosed by the record, as follows:

J. W. Clemons testified that he lived in Sparta, Missouri, and had lived in that place for twenty-three years; that he was in the hardware-and-lumber business and owned a building in the city of Sparta, where he had a hardware store which he had operated for eight or ten years; that his son was in business with him; that he kept a general stock of hardware in this store, valued at six or seven thousand dollars; that the foregoing statements were true as of the day of February, 1925, the date of the alleged crime; that during the February aforesaid, his store was burglarized and considerable goods taken, including pocket knives, flash-lights and flash-light supplies, safety razors and blades, shears, auger bits, cold chisels, punches, hack saws, racket braces, pliers and a shotgun; that the burglary and larceny occurred during the night following February 13th; that witness was in the habit of closing his store some time between seven and nine o'clock in the evening; that he kept the store locked with a Yale lock on the front door, and the back door was the only other entrance and that it was locked; that the front door was locked the night before the alleged burglary, and that on the following morning witness found the front door, which was a double door, open; that it bore marks showing that bars had been inserted between the double doors forcing them apart so that the lock was sprung; that the right-hand door was standing ajar.

Witness further testified that he later recovered some of the stolen goods; that among the goods recovered was a pair of seven-inch shears, which had been taken from his store and that when recovered both blades had been broken off; that these shears had witness's price mark on them; that other of his property was recovered by him in Springfield at the house of one Sampey, chief of detectives at that place; that among the goods so recovered was a case of auger bits in a wooden box and that the box bore witness's private cost mark; that this was about a week after the "robbery;" that some flash-lights were also recovered and were contained in a carton bearing witness's private cost mark; that he recognized his handwriting.

A pasteboard box was handed to witness and identified by him as the box in question and witness testified it had been taken from his store during the "robbery" on the night of the 13th.

Witness further identified several pocket knives as having been taken from his store and testified that he was present when the knives were found by Sheriff Turner of Christian County and other officers at the office of the special agent of the Frisco at Sapulpa, Oklahoma.

Witness further identified some safety razors as part of a lot which he had purchased from a certain firm called Rogers & Baldwin, and which had been in his store at the time of the crime. These had been returned to him through the same channels through which the knives had been recovered.

A flash-light, which had been recovered by witness at Springfield after the robbery, together with the box above mentioned, was identified as being of the same size and make as some of the flash-lights taken from witness's store.

On re-direct examination witness testified...