The State v. Tipton

• Decision Date: 09 April 1925
• Docket Number: 26044
• Citation: 271 S.W. 55,307 Mo. 500
• Parties: THE STATE v. ROY TIPTON, Appellant
• Court: Missouri Supreme Court

271 S.W. 55

307 Mo. 500

THE STATE v. ROY TIPTON, Appellant

No. 26044

Supreme Court of Missouri

April 9, 1925

Appeal from St. Louis City Circuit Court; Hon. J. Hugo Grimm, Judge.

Affirmed.

Harvey & Baer for appellant.

(1) The court erred in admitting in evidence testimony of Lieutenant Murphy that Inspector Vasey told him to investigate the offense in question, at the same time communicating to Murphy the license number of an automobile; and further erred in permitting Murphy to testify that upon getting the information of the license number from Vasey he (Murphy) recognized it as a license number on an automobile of appellant's brother, and thereupon immediately ordered the arrest of appellant and his brother for the offense of which appellant was convicted. Vasey did not testify in the case, and there was not a syllable of evidence in the case that an automobile was used in committing the offense in question, not a particle of evidence that the brother of appellant or his automobile were seen in the neighborhood where the offense was committed, not a shred of evidence that appellant was with his brother when the offense was committed (or at any other time), or that appellant ever had or used or was ever seen in his brother's automobile. State v Grote, 109 Mo. 348; State v. Butler, 113 Me. 1; State v. Niesbbalski, 82 N. J. L. 177; Kirby v State, 44 Fla. 81; Johnson v. State, 250 S.W 681. (2) The instruction of the court defining larceny is erroneous. Sec. 3312, R. S. 1919; Hix v. People, 157 Ill. 382; State v. Casteel, 53 Mo. 124; State v. Sparks, 177 S.W. 346; State v. Richmond, 228 Mo. 362; State v. Weatherman, 202 Mo. 7; State v. Rader, 262 Mo. 117; State v. Hayes, 262 S.W. 1034.

Jesse W. Barrett, Attorney-General, and W. L. Vandeventer, Special Assistant Attorney-General, for respondent.

Appellant in his brief presents the question of error in the giving of subdivision 3 of instruction numbered 1. In view of the expression of the court regarding an instruction of the same import given in the cases of State v. Rader, 262 Mo. 117; State v. Sparks, 177 S.W. 346; and State v. Madison, 177 S.W. 347, 349, we concede that appellant's position is well taken.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On April 18, 1923, appellant, Roy Tipton, was charged in a verified information, filed in the Circuit Court of the City of St. Louis, Missouri, with the crime of burglary in the second degree and grand larceny, in a single count. Said information, without caption and verification, reads as follows:

"Roy A. Fish, Assistant Circuit Attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows: That Roy Tipton on the 4th day of March in the year of our Lord one thousand nine hundred and twenty-three at the city of St. Louis aforesaid into a certain store, shop and building of Witte Hardware Company, a corporation there situate and being, feloniously and burglariously, forcibly did break and enter, with felonious intent then and there, thereby feloniously and burglariously to steal, take and carry away certain goods, wares, merchandise, other valuable things, and personal property in the said store, shop and building then and there kept and deposited, and in the said store, shop and building ninety-five revolvers of the value of $ 1,765.88; thirty-two automatic pistols of the value of $ 506.32; fourteen shotguns of the value of $ 702.87; six rifles of the value of $ 35.08; one target pistol of the value of $ 7.81; four maxim silencers of the value of $ 16.80; eighteen baseballs of the value of $ 24; nine baseball gloves of the value of $ 22.21; all of the value of $ 3,070.97; of the goods, wares, merchandise, other valuable things and personal property of the said Witte Hardware Company, a corporation in the said store, shop and building then and there being found, then and there feloniously and burglariously did steal, take and carry away, with the felonious intent then and there to permanently deprive the owner of the use thereof and to convert the same to his own use; against the peace and dignity of the State."

Defendant was arraigned and entered a plea of not guilty. He was tried before a jury and on November 14, 1923, the following verdict was returned:

"We, the jury in the above entitled cause, find the defendant guilty of grand larceny and assess the punishment at imprisonment in the penitentiary for two years."

After the return of said verdict on November 14, 1923, appellant filed his motion for a new trial, and on the 16th of said month filed a supplemental motion for a new trial. Both of said motions were overruled on November 26, 1923. On November 30, 1923, defendant filed a motion in arrest of judgment, which was overruled. Thereafter, on the same day, judgment was rendered, sentence pronounced upon him, in conformity to the term of the verdict aforesaid, and he was granted an appeal to this court.

The testimony, as stated by counsel for respondent in their brief, is substantially correct and reads as follows:

The evidence on the part of the State tended to prove the following facts:

On the 4th day of March, 1923, the Witte Hardware Company had its place of business at 704 and 706 N. Third Street, between Lucas and Morgan, fronting west, and extending back toward the east to an alley running north and south, in the city of St. Louis, Missouri. The Witte store building adjoined the Zelle Brothers Commission Company on the south and the Stratmann Commission Company on the north, with no natural connection between any of the three buildings, partition walls separating said buildings. The first floor of the building occupied by the Witte Hardware Company was practically on a level with Third Street and thereunder, and under the street level a basement extended back toward the alley.

On Saturday, March 3d, at about two-forty-five P. M., after securely locking all the doors of the Witte Hardware Company building, Mr. Albert T. Caltwasser, the business manager, left the premises. He next visited the place on the following day, Sunday, at about eleven o'clock A. M., for the purpose of admitting a representative of the Missouri District Telegraph Company to do some repair work. When he left the building at about eleven-thirty A. M., all the doors and windows were securely locked. He was again called back at about sixthirty P. M., of the same day, and upon arriving at the premises found a number of police officers. On further inspection he found a hole in the north wall of the Witte Hardware Building at a distance of about fifty feet east of the building line, about thirty inches in diameter, being a hole large enough to admit the body of a man. This hole led into the adjoining building, occupied by the Stratmann Company, which building had been broken into in order to get access into the Witte Hardware Company building.

There was taken from said stock of goods in the Witte Hardware Company building ninety-five revolvers, rifles, shot guns, hunting knives, flashlights, and flashlight batteries, all of the value of $ 431.08. Immediately next to the hole drilled through the wall between the Stratmann Commission building and the Witte Hardware Company building, in the Stratmann building basement, were found a number of large empty sacks bearing the label of a certain seed house on Fourth Street in the city of St. Louis. Outside the hole which had been drilled in the wall of the Stratmann Commission building were found a number of sacks, bearing the same label, filled with goods taken from the Witte Hardware Company. These sacks of goods were removed to the Fourth Street police station.

On the 4th day of March, at about five o'clock in the afternoon Officer Henry William Kohne of the Fourth Street district police station was walking along on Third Street toward Washington Avenue, trying certain doors of buildings and found at 712 N. Third Street that the door leading into the Missouri Commission Company was open. The officer walked toward the back of this building and saw two men who were feeding chickens in the place. The officer continued walking south on Third Street and continued trying doors. When he reached the Witte Hardware Company building he opened the vestibule and went in and tried the door and looked into the office and noticed a man in the office on the south side of the building. As he tried the door the man looked toward the door. He looked at the officer and the officer looked at him and the man walked straight toward the entrance where the officer was standing. He wore a blue suit with a wide stripe, no hat. When he got within fifty feet of the officer he went over toward the wall and it looked as if he had fallen down. The officer did not know where he had gone. The officer then left the vestibule and told Mr. Kratz, who was walking with him, to call up Olive 5000 and advise that number that the officer needed help. He then ran down toward Lucas Avenue. The defendant was the man whom the officer had seen in the building on the Sunday afternoon mentioned. A few minutes after the call for help was sent in several officers appeared. Shortly thereafter Lieutenant Vasey appeared. The officers then entered the building and found that a hole had been cut in the wall on the north side of the building just large enough to admit a man. The hole led from the Stratmann building into the basement of the Witte Hardware building. The door in the back of the Stratmann building had been jimmied open. On the 5th day of March, Officer Kohne saw the defendant at police headquarters. On the 4th day of March, about five-fifty P. M., Officer Murphy was called and...