The State v. Tracy

• Decision Date: 08 June 1922
• Citation: 243 S.W. 173,294 Mo. 372
• Parties: THE STATE v. JOE TRACY, Appellant
• Court: Missouri Supreme Court

243 S.W. 173

294 Mo. 372

THE STATE v. JOE TRACY, Appellant

Supreme Court of Missouri, Second Division

June 8, 1922

Appeal from Jackson Criminal Court. -- Hon. E. E. Porterfield Judge.

Reversed and remanded.

Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Special Assistant Attorney-General, for respondent.

(1) The indictment is sufficient. Sec. 3305, R. S. 1919; State v Helms, 179 Mo. 282; State v. Pearson, 234 Mo 264. (2) An application for a continuance is addressed to the sound discretion of the court, with the exercise of which this court will not interfere, unless it clearly appears from all the facts and circumstances that such discretion has been abused to the prejudice of defendant. State v. Cain, 247 Mo. 705; State v. Salts, 263 Mo. 314; State v. Yeager, 209 S.W. 884. It is not reversible error to refuse a continuance if the evidence desired from an absent witness is merely cumulative. The application for a continuance herein shows that the desired evidence is cumulative only. State v. Riddle, 179 Mo. 294-5; State v. Horn, 209 Mo. 462; State v Sassaman, 214 Mo. 734. (3) Appellant complains of the admission of testimony of R. J. McNutt as being incompetent to identify the stolen barrels of whiskey. A careful reading of his testimony shows it to be entirely competent. All the barrels in the warehouse had burned thereon the name, "Blue Valley Distillery, No. 3, Sixth District of Missouri," and this brand was on the seventeen barrels found in the basement at 2807 East 45th Street. The stock on January 20, 1920, checked seventeen barrels short. State v. Babb, 76 Mo. 504; State v. James, 194 Mo. 276. (4) Recent exclusive possession by the accused of goods stolen at the time of the burglary raises the presumption of law that he was guilty of both burglary and larceny. The appellant and co-defendant, Murply, were shown by the evidence to have been in exclusive possession of the premises containing the stolen whiskey on the day following the burglary and larceny, and this evidence was competent. State v. Babb, 76 Mo. 503; State v. Henderson, 212 Mo. 215; State v. Toohey, 203 Mo. 678. (5) After appellant's instruction in the nature of a demurrer to the evidence was overruled by the court he proceeded to offer testimony in support of his defense, and thereby waived his right to have the action of the court in this regard reviewed. State v. Lackey, 230 Mo. 713; State v. Martin, 230 Mo. 700. (6) Self-serving declarations of accused are not admissible in his behalf, unless they are a part of the res gestae. Appellant complains of the court's action in refusing to admit his conversation with his alibi witnesses at the Antlers Hotel. The refusal was proper. State v. Atchley, 186 Mo. 194; State v. Burgess, 193 S.W. 824; State v. McGuire, 113, Mo. 673; 16 C. J. 635-6. (7) Where there is substantial evidence supporting the verdict of the jury, as in this case, this court will not interfere. State v. Fields, 234 Mo. 627; State v. Sharp, 233 Mo. 298; State v. Cannon, 232 Mo. 215. (8) Instruction No. 2 is in approved form and correctly declares the law in this case. State v. Conway, 241 Mo. 281; State v. Blockberger, 247 Mo. 606. (9) Instruction No. 3 on recent possession of stolen goods is correct. State v. James, 194 Mo. 277; State v. Owen, 79 Mo. 624-6. (10) Possession of personal property is presumptive evidence of ownership. Instruction No. 4 is a correct statement of the law regarding the corporate ownership of the whiskey involved in this case. State v. Boone, 70 Mo. 653. (11) In order to justify reversal of the judgment it should appear that the remarks of counsel for the State were prejudicial to the defendant. The remarks complained of are proper conclusions drawn from the testimony in the record. State v. Harvey, 214 Mo. 410; State v. Whitsett, 232 Mo. 529.

HIGBEE, P. J. Walker, J., dissents.

OPINION

HIGBEE, P. J.

The indictment charges that the defendant Joe Tracy, and Charles Murphy, on January 20, 1920, broke into a certain building, the bonded warehouse of the Blue Valley Distillery Company, a corporation, located between 39th and 40th Streets, on Holden Avenue, Kansas City, Missouri, and stole seventeen barrels of whiskey, of the value of $ 8500, of the goods and property of the Blue Valley Distillery Company, against the peace and dignity of the State.

The defendant was arraigned on April 15, 1920, pleaded not guilty, and entered into a recognizance in the sum of $ 5,000. On May 29th, the defendant was granted a severance and the trial was set for June 14th. On June 2nd the defendant applied for a continuance, which was overruled, and the cause set for trial on June 21st, on which day the trial was again set for July 12th. When the case was called for trial on July 12th, the defendant forfeited his recognizance, and scire facias was issued returnable on the 1st day of the next term of court, being September 6, 1920. On December 13th, the defendant again applied for a continuance, on account of the absence of witnesses, which was overruled, and the case went to trial before a jury on the following day, resulting in a verdict of guilty of burglary and larceny, for which the punishment was assessed at two years' imprisonment in the penitentiary for the burglary, and an additional two years for larceny. Motions for new trial and in arrest were filed and overruled. The defendant was thereupon sentenced in accordance with the verdict, and an appeal granted, the defendant being allowed to prosecute his appeal as a poor person.

The testimony for the State is thus summarized in the statement of the learned Attorney-General:

"The Blue Valley Distillery Company, a holding corporation of the S. Hirsch Distillery Company of Kansas City, Missouri, was the owner and in possession of seventeen barrels of whiskey on January 20, 1920, which was contained in a Goverment bonded warehouse located at Leeds, Jackson County, Missouri.

"One W. S. Clark was employed by the Blue Valley Distillery Company as a night watchman and was on duty on the night of January 19, 1920. About 1 or 1:30 in the morning while he was seated in the office, knocks were heard on the door and upon opening the door two men covered him with pistols and commanded him to put up his hands. This he did, while one man took his pistol from him. These men then asked where the whiskey and the key were, and were told it was in the bonded warehouse and only the Government gauger carried the key. They then proceeded to break the lock and force the door open, and directed Clark to show them where the whiskey was. It was stored on the third floor. The three went up and located the whiskey, and then returned and went through the building to the east end on Holden Avenue, and there were joined by four more men, who were waiting. Two of the four were defendant, Joe Tracy, and co-defendant, Charles Murphy.

"They then whistled and a truck drove up and stopped for loading.

"The party of six men took Clark and went into the warehouse, defendant being one of the six. After reaching the third floor witness was blindfolded, the defendant holding his head while another man put on the blind, which was left on about one and a half hours.

"Clark heard one man ask how many barrels they had down, and another replied that they had twelve. The other then said that they must have seventeen and took some more barrels down. The barrels were taken down on an elevator, which witness could hear running, and could hear them rolling the barrels and their conversation.

"The blind-fold was then removed, and Clark was taken down to the truck and required to help load the balance of the barrels. He saw five men with revolvers, and Tracy and Murphy had shotguns, after the truck pulled out.

"Tracy told witness that they were going to take him for a ride, and he and Murphy required witness to get into the front seat of a touring car, which was waiting at 39th Street, and Tracy and Murphy took the rear seat. They drove him around on various streets for some time, and finally let him out at 57th and Troost Avenue, and told him to go down the street and not look back. However, witness did look back when about a block away, and saw the car turn around and go south from whence they came.

'Tracy said when leaving for the drive, 'We have looked this place over. I have been to this place twice and looked it over, and we aimed to get here sooner but we were detained.'

"The fair market value of the whiskey was shown to be $ 8,000.

"It was shown by Captain John J. Ennis, a police captain in charge of Police Station No. 9, Kansas City, Missouri, on January 20, 1920, that he took seven police officers and went to 2807 East 45th Street about ten o'clock a. m., and went into the house and found defendant, Tracy, and Charles Murphy, but no one else. They also found seventeen barrels of whiskey in the basement, one of which had been broken open. Both men were intoxicated. The whiskey was turned over to Mr. McNutt for the Government. The building was a cottage, and defendants were in the living room thereof. The policemen saw there a Winchester revolver, 30-30, and a pop shotgun and a .38 Colt's revolver.

"The defendants were arrested and taken to Police Station No. 9. Both defendants refused to talk.

"The officers watched the house from the morning of the 20th to the morning of the 22nd, and investigated who lived there, but found no one except the defendants.

"The whiskey was identified by R. J. McNutt, the United States Government store-keeper and gauger stationed at Kansas City and assigned to the Blue Valley Distillery Company at Leeds. He had the key to its bonded warehouse. He saw the whiskey at the house where it and defendants were found, and identified it by checking...