The State v. Mintz
| Decision Date | 06 June 1905 |
| Parties | THE STATE v. MINTZ, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Affirmed.
Thos B. Harvey for appellant.
(1) The property was not obtained in Illinois either by larceny or by robbery. State v. Fink, 84 S.W. 924; Rex v Barnard, 7 Car. & P. 784; State v. Wilkerson, 98 N.C. 696; 1 Clark's Crim. Law (2 Ed.), p. 322; State v. Kube, 20 Wis. 217; State v. Anderson, 186 Mo. 25; State v. Buck, 186 Mo. 15. (2) The indictment is insufficient in failing to allege that the property was stolen in Illinois and brought into this State. 12 Ency. Pl. and Pr., 949; Lee v. State, 64 Ga. 203; Stanley v. State, 24 Ohio St. 166; State v. Reonnals, 14 La. Ann. 278; Simpson v. State, 23 Tenn. 456; State v. Matthews, 87 Tenn. 689; Morrissey v. People, 11 Mich. 327; Ham v. State, 17 Ala. 188; Le Vaul v. State, 40 Ala. 44; State v. Morales, 21 Tex. 298; Cummins v. State, 12 Tex.App. 121; Strouthnor v. Com., 92 Va. 789; Clark's Cr. Law, p. 424; May's Cr. Law, sec. 80; Beale's Cr. P. & P., sec. 5; Rapalje on Larceny, sec. 62; 14 Am. Digest, sec. 178.
Herbert S. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State.
(1) The question of the interest in and ownership of the property by the railroad company has been passed upon in this State in the case of State v. Waghalter, 177 Mo. 676. (2) A full discussion of the question of larceny as distinguished from obtaining money by false pretense is given in the cases of State v. Anderson, 186 Mo. 25; State v. Copeman, 186 Mo. 108; State v. Buck, 186 Mo. 15. And the law as applied to the facts in this case leaves no doubt that Mintz was guilty of larceny. There was no transfer of title from the railroad company to Rector. So far as the railroad company was concerned, he was given possession of the property for but one purpose and that was to convey it to the shoe company in St. Louis.
The information in this case was filed in the circuit court of the city of St. Louis by the circuit attorney of St. Louis, on January 26, 1904, charging the defendant, Samuel Mintz, together with Alexander Zellinger, Jacob Zeidell and William Wiseman, with stealing one hundred and forty-six cases of shoes from the Cleveland, Cincinnati, Chicago & St. Louis (commonly called the ") Railroad Company, of the aggregate value of eighteen hundred dollars.
The defendant was arrested and filed a motion to quash the information, which motion was by the court overruled; the defendant was arraigned, pleaded not guilty and was placed upon his trial after a severance was granted, and the State elected to first try defendant.
The information contains two counts, and the offense was thus charged:
The evidence developed at the trial of this cause substantially shows the following state of facts:
The freight depot of the Big Four Railroad for the reception and delivery of freight for the city of St. Louis, Missouri, is situated in the city of East St. Louis, Illinois, and it is the custom of merchants in St. Louis to give the work of hauling goods from this and other railroads to transfer companies which contract to haul freight for the merchants from East St. Louis to St. Louis, crossing the river by bridge or ferry, as the case may be.
On or about the 10th or 11th day of September, 1903, there was received, among other freight, at the Big Four depot, one hundred and forty-six cases of shoes consigned to the Geisecke-D'Oench-Hays Shoe Company, a firm of merchants in the city of St. Louis. It appears that in the course of business of the Big Four Company, the freight received for delivery is checked out of the cars on what is called a "blind tally," that is, the "checker" takes a blank sheet provided and as the goods come out of the car enters the items on the "blind tally," and this "blind tally" is turned over to other employees and by them checked against the waybills to ascertain the correctness of the list of goods. From the waybills are then prepared delivery tickets, giving the name of the consignor and consignee, and the location of the goods in the warehouse of the Big Four Company, so that when the goods are called for the delivery clerk will know the class and character of the goods called for and their location in the warehouse.
A person calling for goods is referred to the delivery clerk, who refers to his delivery tickets and turns the tickets over to a person known as a "picker." The "picker" directs the party to whom the goods are to be delivered to place his wagon in front of the door nearest to the location, and the goods are by him delivered to the wagon, and the driver signs the delivery tickets and is given a ticket to be signed by the consignee, which is to be returned to the railroad company when signed by the consignee. The testimony shows that the Mound City Transfer Company had been doing all the hauling for the Giesecke Company for several years and that fact was well known and so understood at the Big Four depot. Clarence Rector, who procured the goods, had for about a year or more previous to August 12, 1903, been an employee and driver for the Mound City Transfer Company, and had made almost daily visits to the Big Four depot in such capacity, and was well known to the delivery clerks as a Mound City employee. On Saturday morning, September 12, 1903, about seven o'clock or a little after, Rector drove up to the depot and there met Robert Morcom, one of the delivery clerks of the Big Four.
On that morning there was what was known as a "rush order" in the Big Four depot for the delivery of a box of brass faucets for the Blanke Company, a concern for which the Mound City Transfer Company also did the hauling, and when Rector appeared Morcom proceeded to make up a load of freight for him to be hauled by the Mound City Transfer Company.
Morcom produced the delivery tickets for the Blanke orders and for the Giesecke order and handed them to Cassen, a "picker," and told him to give the goods called for by the tickets. As to the custom of delivery Morcom testified that when a man came in, whether an employee of the Mound City Transfer Company or any other, and asked for a load he would turn the sheets over to his men and instruct them how to load the wagon. On this morning when Rector called for one particular shipment of shoes, he had a rush order from Blanke for one box of brass faucets, and told him he would have to take those goods, then he would deliver him the shoes.
W. O. Life, a witness for the State, testified that on September 12, 1903, he worked...
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