The State v. Kolafa
| Decision Date | 02 January 1922 |
| Parties | THE STATE v. FRANK KOLAFA, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor Judge.
Affirmed.
Thomas B. Harvey for appellant.
(1) The court erred in permitting the prosecution, over the timely objection of the defendant, to show other larcenies by the defendant. State v. Daubert, 42 Mo. 242; State v. Spray, 174 Mo. 569; State v. Boatright, 182 Mo. 33; State v. Ottrick, 184 S.W. 108; State v Cummins, 213 S.W. 969. (2) Instruction 5, that the State had introduced evidence tending to show the theft of other automobiles, and that the jury could consider said testimony "for the purpose for which it was admitted, that is, to show the intent, conduct and motive with which the defendant acted with respect to the property for the theft of which he is now on trial," was erroneous and prejudicial. Authorities cited above. (3) Error was committed in not permitting the defendant to show all the circumstances and conversations attending his acquisition of the Willmann car regardless of whether they were the acts and statements of the parties to the sale of the car or of bystanders. Potter v. McDowell, 31 Mo. 62; State to use v. Schneider, 35 Mo. 533; Stewart v. Lawrence, 43 Mo. 322; Snyder v. Free, 114 Mo. 360; State v. Elkins, 101 Mo. 344; 22 C. J. p. 450, sec. 540; 16 C. J. p. 572, sec. 1114; Echols v. State, 41 So. 298; People v. Cline, 74 Cal. 575; State v. Kelly, 57 Iowa 644; State v. Jordan, 69 Iowa 506; Doss v. State, 28 Texas App. 506; Way v. State, 35 Ind. 409; 25 Cyc. 139. (4) Error in the rejection of evidence was also committed in not permitting the defendant to show that the original cylinder blocks of automobiles bear numbers made into them, and that when they, for any reason, have to be replaced the new block does not bear any number.
Jesse W. Barrett, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.
(1) The court did not commit error in permitting the State to introduce testimony tending to prove the theft of other automobiles. Where it appears from the evidence that the theft of automobiles was but a part of the common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, evidence of the theft of other automobiles than the one charged in the indictment is admissible. State v. Othick, 184 S.W. 108; State v. Prunty, 276 Mo. 376; State v. Hyde, 234 Mo. 226; State v. Bailey, 190 Mo. 279. (2) The court did not commit error in refusing to admit in evidence conversations had between appellant and a third person attending what appellant claims to be his manner of acquiring the alleged stolen car. (a) In a prosecution for grand larceny the defendant cannot make evidence for himself by adducing his own declarations as to his motives and designs when he obtained the property. State v. Shermer, 55 Mo. 85. (b) Self-serving statements and acts cannot be introduced in evidence by the accused. State v. Moxley, 102 Mo. 394; State v. Good, 132 Mo. 127; State v. Long, 201 Mo. 674. (c) Such evidence was properly excluded, since it was clearly nothing but a mere narrative of a past occurrence, and therefore, hearsay and self-serving. State v. Athanas, 150 Mo.App. 590; State v. Kelleher, 201 Mo. 635; State v. McKenzie, 228 Mo. 400. (d) What one found in the possession of goods recently stolen says in explanation of such possession immediately upon being discovered, and before he has time to concoct a story, is a part of the res gestae and receivable in evidence as such; but this principle does not apply where the defendant with ample time to prepare a self-serving story goes upon the stand and makes his explanation. State v. Moore, 101 Mo. 316, 331; State v. Nocton, 121 Mo. 537, 552; State v. McKenzie, 228 Mo. 385, 400. (3) The court did not commit error in refusing to permit the defendant to show that he had observed conditions indicating a burglary of Ehrenberg's house, reported the same to the police, causing an investigation of the matter and of the witness Biehslich's connection therewith. The character and credibility of a witness cannot be impeached by testimony as to specific acts. State v. Nelson, 98 Mo. 418; State v. Rogers, 108 Mo. 204; State v. Hyder, 258 Mo. 225, 230; State v. Baker, 262 Mo. 689, 699. (4) The court did not commit error in refusing to permit the defendant to show that the original cylinder blocks of automobiles bear the number made into them, and that when they, for any reason, have to be replaced, the new block does not bear any number, such offer being irrelevant and incompetent. State v. Elvins, 101 Mo. 246; State v. McCoy, 111 Mo. 525; State v. Griffin, 87 Mo. 612. (5) The court did not commit error in the giving of Instruction 5 concerning the purpose for which evidence of other larcenies was admitted. State v. Othick, 184 S.W. 108; State v. Prunty, 276 Mo. 359, 375; State v. Hyde, 234 Mo. 200, 226; State v. Bailey, 190 Mo. 257, 279.
WHITE, C. Railey and Reeves, CC., concur.
The defendant and one William Ehrenberg were jointly indicted in two counts charging grand larceny, and receiving stolen property knowing it to be stolen. One automobile of the value of three hundred and fifty dollars was the property involved. After severance Kolafa was tried alone. The State elected to proceed upon the first count, charging grand larceny. The defendant was found guilty and his punishment assessed at two years in the penitentiary. The appeal is from that judgment.
The State introduced as witness one Joseph Nochta, who owned a Ford automobile, model 1916, which he said was worth three hundred and fifty dollars. On the night of September 8, 1917, he left his car on Collinsville Avenue, East Saint Louis, and went into a store. When he came out shortly afterwards his car was gone. He reported his loss to the police of the city of Saint Louis, and afterwards saw the chassis and body of the car at the police station in Saint Louis. The body had been sawed into three pieces, the chassis had a different body on it, and the motor number had been filed off. He identified parts of his car by private marks he had made.
The principal witness for the State was Albert C. Biehslich. At the time of the alleged theft he was seventeen years of age. Biehslich testified that he was an automobile mechanic; that he got acquainted with Ehrenberg and Kolafa in 1913; Ehrenberg was in the meatmarket business at 2118 Cherokee Street. In the rear of the building was a garage large enough to hold at least five automobiles; also at the rear next door, under the same roof, at No. 2116, was a vacant place called the slaughter house. Ehrenberg owned a Crawford automobile which he used as a delivery truck in connection with his business; he decided it was too expensive, and he wanted a Ford. Ehrenberg, Kolafa and witness agreed that they would steal a Ford automobile for Ehrenberg's personal use. Ehrenberg directed Kolafa and Biehslich to go to East Saint Louis for that purpose. Accordingly Biehslich, Kolafa and a man named Ted, a friend of Ehrenberg, went to East Saint Louis in a car belonging to Biehslich; they drove around until they saw a Ford stopped on State Street or Collinsville Avenue, witness did not remember which. The occupants of the Ford got out and went into a drug store across the street; Kolafa drove witness's car back of the Ford car; Ted had a gun and said he would shoot anybody that came. Witness cranked the Ford and drove away, with Kolafa following. They drove over the Free Bridge and to 2118 Cherokee Street, where Ehrenberg was waiting for them, and put the car in the garage. They explained to Ehrenberg, Kolafa being present, where they got the car. Kolafa and witness went away together. That was about eight or nine o'clock at night. Afterwards the body of the car was taken off and sawed into three pieces; the number was filed off and a new number put on. In Ehrenberg's shop there were a set of dies and all kinds of tools for putting on numbers. Kolafa, Ehrenberg and witness engaged in that work. The top of Nochta's car was taken from the garage into the slaughter house and put up on the rafters. The tires were changed and all marks of identification were removed. A roadster body bought by Ehrenberg for twenty-five dollars was placed on the chassis. After that body was put on, the car was sent to the paint shop and painted and some accessories put on. Later the body thus put on was removed, and a touring-car body put on the chassis. The tourning body was taken off a car called the Lange car, which was stolen by Kolafa and the witness at Nineteenth and Pine Streets, and brought to Ehrenberg's garage. Kolafa received thirty dollars for his part in the stealing of the first car for Ehrenberg, and witness received twenty-five dollars. The first car stolen was to belong to Ehrenberg, and the second car stolen was to belong to Kolafa. Before the Lange car was stolen Kolafa had received money from the Landsman Motor Company for a Ford chassis to be delivered; afterwards the Lange car was stolen; the body was taken off, and the chassis delivered to Landsman Garage by Kolafa and the witness; the body of the Lange car was put on the Ehrenberg car by Ehrenberg, Kolafa and witness. Wheels off a car stolen by Kolafa and witness on Compton and Lawton Avenues were put on the Nochta car, or Ehrenberg car, and were on it when the police got it. The witness then went into particulars explaining how the changes were made on the different cars for the purpose of concealing their identities, and the manner in which they were stored in Ehrenberg's garage, and used.
One Willman, introduced as a...
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