The State v. Speritus
| Decision Date | 21 November 1905 |
| Citation | 90 S.W. 459,191 Mo. 24 |
| Parties | THE STATE v. SPERITUS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.
Reversed and remanded.
Thos B. Harvey for appellant; J. M. Rollins of counsel.
(1) The court erred in overruling defendant's objection to rebuttal evidence of the State tending to prove the good reputation of witness Vaughn, in the absence of attack upon said reputation by defendant. State v. Cooper, 71 Mo. 436; State v. Thomas, 78 Mo. 327; State v Patrick, 107 Mo. 147. (2) The instructions were erroneous in the following respects: (a) The second instruction does not require the taking, but the conversion, to have been without the consent of the owner of the property; and, (b) it does not require the breaking and entering to have been done burglariously in order for the stealing of property of any value to constitute grand larceny. State v. Walker, 174 Mo. 518; State v. Rutherford, 152 Mo. 124; State v. Barker, 64 Mo. 282; State v. Brown, 73 Mo. 631; State v. Brinkley, 146 Mo. 37. (3) The court should have given the instruction requested by the defendant, to the effect that the possession of the stolen property by defendant, raised either the presumption that he had stolen the property, or that he had received it from another. State v. Guild, 149 Mo. 370; State v. Richmond, 186 Mo. 71. (4) The court should have sustained defendant's motion to quash the information on the ground that the assistant circuit attorney was without power under the law to issue it. Secs. 2477, 4959, 4960, R.S. 1899; Laws 1901, p. 48; Laws 1905, p. 51; State v. Kelm, 70 Mo. 515; State v. Kyle, 166 Mo. 287. (5) Defendant should have been granted a new trial because of the discovery of new and material evidence. State v. McKenzie, 177 Mo. 699.
Herbert S. Hadley, Attorney-General, and Rush C. Lake, Assistant Attorney-General, for the State.
(1) There could have been but one purpose accomplished in granting a new trial based upon newly-discovered evidence, which would have been that the testimony would have tended to impeach the credibility of witness Vaughn if the jury had believed it. State v. Miller, 144 Mo. 26; State v. Bowman, 161 Mo. 88; State v. Neasby, 87 S.W. 468. (2) The court properly refused to give the instruction asked by defendant as to presumption. The law respecting the presumption of stolen property is very different when a defendant is charged with receiving stolen property (State v. Richmond, 186 Mo. 71) from the presumption when the defendant is charged with burglary and larceny, as in the case at bar. State v. Drew, 179 Mo. 315; State v. Belcher, 136 Mo. 137.
On the 20th day of April, 1904, there was filed an information in the office of the clerk of the circuit court of the city of St. Louis by W. Scott Hancock, assistant circuit attorney of said city, under his oath of office, charging the defendant with burglary in the second degree and larceny. Upon trial had, defendant was convicted of both burglary and larceny, and his punishment fixed at three years' imprisonment in the penitentiary for the burglary, and two years for the larceny. After unavailing motions for new trial and in arrest of judgment, defendant appeals.
The facts, briefly stated, are that William A. Grolock kept a vehicle and harness establishment at 915 North Broadway, in the city of St. Louis, which was closed on Saturday evening, January 30, 1904, but upon the following Monday morning a rear door was found open, a glass skylight broken, and a milk wagon and sixteen sets of single harness were missing from the store.
Reuben Vaughn, a witness for the State, after testifying that he knew the defendant, proceeded as follows:
"Well, he -- the way it come up, he asked me whether I had a stable shed at my house to conceal a wagon, or put a wagon in, and I told him no, I had no shed at my house that would do for a wagon because I had no shed at all, and he told me he has got a good wagon he wants to put in a shed, and he would be willing to pay for it if he knew some one that had a shed, and I asked him what he would be willing to pay for some one to keep the wagon for him, thinking he wanted it kept out of the weather, and he said he wanted to pay ten dollars to keep it for a month, and I thought that was a good price, and I told him I thought I could find a good place to keep the wagon out of the weather, and I suggested, then, my father's as being a good place to put the rig, as he had plenty of room out there, and I told him if he would be willing to pay ten dollars I would go out and see my father-in-law -- see if my father-in-law would keep the wagon for ten dollars a month, because I thought I would get him to keep it cheaper and keep the balance myself; and he says, 'Go and see him right away,' and I says to him, 'Where is the rig?' and he says he's got it out on the road between here and East St. Louis, and I told him -- I says: 'Is it a stolen rig?' and he says, 'Yes, the rig is stolen, but there ain't no way on earth to get in trouble about it.' And I asked him what kind of a wagon it was, and he said a great big delivery wagon with a top on it, and I told him I didn't know whether he had room for a wagon with a top on it, because he had no wagon with a top on, and he says, 'The top can be taken off;' he says, 'I don't want you to take the top.' He says, 'I will tell you where the rig is, and if you will go out there and get the running-gear of that rig for me I will give you ten dollars to get it and bring it to town and take it out to your father-in-law's, and I will pay him for keeping it,' and I told him, I says, 'How will I get the running-gear to town?' and he says, 'I will give you a monkey wrench and you go out there; there is only four or five bolts you have to take off, and the top will come off,' and I told him all right, and I says, 'I will go out and see my father-in-law,' and he says, 'You can then take your gun and dog and go out like you are hunting and walk up to the rig and look at it and if there ain't nobody around, you can take the bolts off and the top will fall down the hill;' and I told him all right, and I says, 'You will have to give me car fare to go out to my father-in-law's and he gave me ten cents. And I had read an account in one of the St. Louis papers about a week, or maybe two weeks, previous to that, about a rubber-tired rig and horse being stolen over here in St. Louis, and I kind of suspected that might be the rig, and I went back and asked him, 'What about a wagon to bring that home on?' and he told me I could hire a wagon and he would pay me for the hire. I told him, 'Can you give me one of your horses?' -- he had three of his own then -- and he says, 'No, if I give you one of my horses that will be suspicious right away,' and I says, 'Is that a rubber-tired rig?' and he says, 'No;' and I went to the police headquarters at Belleville and asked them if they had a description of a rig that had been stolen in St. Louis . . . ."
The testimony of witness Vaughn was corroborated by the testimony of the police officers of both Belleville and St. Louis, in so far as the recovery of the wagon was concerned, and its location in the woods.
The defense was an alibi, in support of which defendant offered evidence which tended to show that from Saturday, January 30th, to Monday, February 1st, he was in Belleville and could not have been in St. Louis, the scene of the burglary. Some witnesses also testified that they overheard a conversation between Vaughn and defendant on February 2, when, instead of defendant telling Vaughn about a wagon, Vaughn was trying to sell defendant, for the sum of ten dollars, a covered wagon which he claimed to have somewhere.
The court gave the following instructions:
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