The State v. Kosky

• Decision Date: 21 November 1905
• Citation: 90 S.W. 454,191 Mo. 1
• Parties: THE STATE v. KOSKY, Appellant
• Court: Missouri Supreme Court

90 S.W. 454

191 Mo. 1

THE STATE v. KOSKY, Appellant

Supreme Court of Missouri, Division Two

November 21, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.

Affirmed.

S. S Bass for appellant.

(1) The motion to quash the information, or each count therein should have been sustained, because: (a) The first count of the information (buying and receiving stolen property, knowing it to be stolen) fails to describe the property with sufficient certainty. Clark's Crim. Proc., sec. 92. (b) Said first count charges two separate and distinct crimes in the one count. R.S. 1899, sec. 1916; State v. Thierauf, 167 Mo. 429. (2) The instruction prayed for by the defendant at the close of the State's case in the nature of a demurrer should have been given. The evidence did not disclose facts sufficient to warrant submission of the case to the jury upon either the count for buying and receiving property, knowing it to be stolen, or the count for larceny. The evidence does not support the allegations of either count of the information. The crime, if any has been established by the evidence, is an offense under, and a clear violation of section 1930, Revised Statutes 1899, the obtaining of property by personating another.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) The information, which was properly verified, was sufficient, and was even more complete than one that has received the approval of this court. State v. Fink, 186 Mo. 50; R.S. 1899, sec. 1916. (2) As to the sufficiency of the evidence, it may be said that the jury believed the Fleming boy, as they had a right to do, and his testimony showed conclusively that defendant was guilty. State v. DeWitt, 152 Mo. 569; State v. Peebles, 178 Mo. 486; State v. Flora, 109 Mo. 297; State v. Anderson, 84 S.W. 949; State v. Vickery, 19 Tex. 326; 1 Bishop on Crim. Law, sec. 207.

OPINION

BURGESS, P. J.

At the April term, 1904, of the circuit court, city of St. Louis, under an information filed by the circuit attorney, which information was in two counts, the first count charging defendant with receiving stolen property, knowing it to have been stolen, and the second charging him with grand larceny, the defendant was found guilty on the first count of the information, and his punishment assessed at imprisonment in the penitentiary for a period of two years. His motions for a new trial and in arrest of judgment having been overruled, defendant appeals.

The State's evidence tended to show that the defendant was the proprietor of a pool-hall at No. 1418, Cass avenue in the city of St. Louis, and that in connection with that business he also sold cigars; that a boy named Willie Fleming had been in the habit of visiting the place for about a year, and that defendant suggested to him that he could easily make some money; that defendant entered into an arrangement with the boy whereby, he, the defendant, was to telephone to Peter Hauptmann Tobacco Company for some cigars and say that they were wanted by the Wolff-Wilson Drug Company and Fleming was to call for the cigars and bring them to the defendant's place of business. In consonance with this arrangement, the defendant went to the Republic building and telephoned for the cigars, representing to the Peter Hauptmann Tobacco Company that they were for the Wolff-Wilson Drug Company, and that a boy would soon call for some of them. Defendant then told Fleming to go and get the cigars, and that if he should be required to sign any order or receipt for the cigars he should be careful to sign some such name as Myers, King or Hagan. The boy went for the cigars about 2 p. m., on the 25th day of February, 1904, and got six hundred Cremos and six hundred Fontellas, signed a paper, using the name Walter King, and took the cigars to defendant's pool-room. Defendant then paid the boy $ 8.50. The police afterwards arrested the boy for some other offense, and he told them of this transaction, whereupon the police went to defendant's residence, which was about two blocks from his poolroom, arrested him and found some of the cigars in a wardrobe in the front room of his dwelling. On being asked about the cigars he had bought from the boy, defendant admitted that he had them, and told the officers that some of them were in the wardrobe in the front room and some in the showcase at his pool-room. He stated that he had purchased the cigars from the boy and denied having obtained them in the way related by Fleming.

The manager for Wolff-Wilson Drug Company testified that no order for cigars was given that day. Two of the shipping clerks employed by the Peter Hauptmann Tobacco Company testified that the Fleming boy called at the said company's place of business and obtained twelve hundred cigars; that the boy claimed to represent the Wolff-Wilson Drug Company, and signed the name of Walter King, and that the cigars were worth $ 32 per thousand.

On behalf of defendant, the evidence tended to show that he enjoyed a good reputation for honesty; that he purchased these cigars from the Fleming boy in two lots, and paid him $ 12 the first time and $ 5 the second time, and had no knowledge whatever that any of them were stolen; that the boy represented to him that he was selling cigars for a firm which was trying to sell out, and, therefore, sold them at a reduction. The evidence further tended to show that this Fleming boy had obtained cigars from other houses in St. Louis, under similar circumstances, and sold them to proprietors of saloons and pool-rooms, and that at the time of the trial the boy was under indictment for larceny and obtaining goods by false pretenses.

The court instructed the jury as follows:

"1. If you believe and find from the evidence beyond a reasonable doubt that at the city of St. Louis and State of Missouri, on or about the 25th day of February, 1904, or at some time prior thereto, the property mentioned in the information herein, that is to say, twelve hundred cigars, were unlawfully and fraudulently stolen, taken and carried away from the possession of the Peter Hauptmann Tobacco Company and that the said Peter Hauptmann Tobacco Company was then a corporation, by some person other than the defendant, Frank Kosky, with the intent on the part of the person so taking, stealing and carrying away the same unlawfully and fraudulently to convert said cigars to his own use and to deprive the said Peter Hauptmann Tobacco Company of the same permanently without its consent, and that the cigars and property so stolen, taken and carried away were of the value of $ 30.00 or more and were the property of the said Peter Hauptmann Tobacco Company; and you further find that after the said cigars and property had been so stolen, taken and carried away as aforesaid by some person other than the defendant, the said defendant, at the city of St. Louis and State of Missouri, on or about the 25th day of February, 1904, unlawfully, fraudulently and wrongfully did receive said property into his, the defendant's possession, knowing at the time he so received such cigars and property that it was stolen; and that he received the same with the unlawful and fraudulent intent to or for the purpose of aiding the thief or with the unlawful and fraudulent intent of permanently depriving the owner of its said property without its consent; and you further find from the evidence that the property so received by the defendant was of the value of thirty dollars or more, you will find the defendant guilty as charged in the first count of the information and assess his punishment at imprisonment in the penitentiary for a term of not fewer than two years, and not more than five years, and unless you so find the facts you will acquit the defendant of the said charge of receiving stolen property.

"2. By the term 'knowing' that the property was stolen is not meant absolute, personal and certain knowledge on the part of the defendant that the cigars mentioned in the information had been stolen, but such knowledge and information in his possession at the time he so received the same as would put a man of ordinary prudence or exercising ordinary care on his guard, and would cause such a man to believe and to be satisfied that the property had been stolen.

"3. You are further instructed that if you find from the evidence that the twelve hundred cigars mentioned in the information were on the 25th day of February, 1904, owned by and in the possession of the Peter Hauptmann Tobacco Company and that the said Peter Hauptmann Tobacco Company was then a corporation, and that on said day at the city of St. Louis and State of Missouri, the defendant, Frank Kosky, acting in conjunction with the witness, William Fleming, unlawfully and fraudulently did obtain possession of said cigars from the said Peter Hauptmann Tobacco Company by unlawfully, falsely designedly and fraudulently representing to the said Peter Hauptmann Tobacco Company that the said cigars were then ordered by the Wolff-Wilson Drug Company, and that the said William Fleming was then and there authorized by the said Wolff-Wilson Drug Company to represent it and receive said cigars for it; when in fact said cigars were not then ordered by said Wolff-Wilson Drug Company and the said William Fleming was not then authorized to represent the said Wolff-Wilson Drug Company and receive said cigars for it; and that the defendant then and there and thereby unlawfully and fraudulently did obtain possession of the cigars in question of and from the said Peter Hauptmann Tobacco Company and that the same were then and there unlawfully and fraudulently taken and carried away by the defendant, so acting, from the possession of the said Peter...