The State v. Wagner

• Decision Date: 22 December 1925
• Docket Number: 26635
• Citation: 279 S.W. 30,312 Mo. 124
• Parties: THE STATE v. JOSEPH W. WAGNER, Appellant
• Court: Missouri Supreme Court

279 S.W. 30

312 Mo. 124

THE STATE v. JOSEPH W. WAGNER, Appellant

No. 26635

Supreme Court of Missouri

December 22, 1925

Motion for Rehearing Overruled January 6, 1926.

Appeal from Jackson Circuit Court; Hon. James H. Austin Judge.

Affirmed.

Anthony P. Nugent for appellant.

(1) The court erred in refusing to give the peremptory instruction as requested by defendant in the nature of a demurrer to the evidence at the close of the case. State v. Buckley, 274 S.W. 74; State v. Tracy, 284 Mo. 619; State v. Ruckman, 253 Mo. 487; State v. Adkins, 222 S.W. 431; State v. Singleton, 294 Mo. 346; State v. Lee, 272 Mo. 121. (2) The court erred in refusing to give Instruction B. (3) The court erred in refusing to give Instruction C. Grantella v. United States, 3 F. 117; De Luca v. United States, 298 F. 412; Broens v United States, 290 F. 809; Sullivan v. United States, 283 F. 865; Sorenson v. United States, 168 F. 785. (4) The court erred in giving instruction numbered 3 1/2, because there was no evidence in the case to support such an instruction. State v. Simpson, 237 S.W. 748; State v. Wagner, 237 S.W. 750; State v Wagner, 252 S.W. 695.

Robert W. Otto, Attorney-General, and Wm. L. Vandeventer, Assistant Attorney-General, for respondent.

(1) Instruction 4 is in proper form and has been approved. The only question here is, was there sufficient evidence upon which to base such an instruction? State v. Samis, 296 Mo. 471; State v. Williams, 274 S.W. 50; State v. Boes, 262 S.W. 1019. (2) Refused Instruction C was fully covered in number 2 given by the court at the request of the State. (3) Refused Instruction B was fully covered by given Instruction 3 1/2.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On August 1, 1924, the grand jury of Jackson County, Missouri, returned into the circuit court of said county, an indictment, reading as follows:

"The grand jurors for the State of Missouri, duly summoned from the body of said County of Jackson, being duly impaneled, sworn and charged to inquire within and for said county, upon their oaths present and charge that one Joseph W. Wagner whose Christian name in full is unknown to said grand jurors, late of the county aforesaid on the 25th day of July, 1924, at the County of Jackson, State of Missouri, one Buick Touring Motor Vehicle Motor Number 1144429 of the value of fifteen hundred dollars of the goods and chattels of one J. L. Ward then and there being, then and there did unlawfully and feloniously, steal, take and carry away; against the peace and dignity of the State."

The defendant was arraigned, entered a plea of not guilty and filed an application for a change of venue, which was sustained and the cause transferred to Division 9, sitting as Criminal Division B of the circuit court aforesaid. Thereafter, on September 9, 1924, the cause was tried before a jury, and the following verdict returned:

"We, the jury, find the defendant Joseph W. Wagner guilty of theft of an automobile as charged in the indictment, and assess his punishment at five years in the penitentiary."

Motions for a new trial and in arrest of judgment were filed in due time and overruled on September 17, 1924. Thereafter, on the date last mentioned, defendant was granted allocution, judgment rendered, sentence pronounced in accordance with said verdict, and an appeal granted defendant to this court.

The testimony as set out by respondent's counsel in their brief is substantially correct and is hereby adopted as our statement, as follows:

The evidence shows that on the 27th day of May, 1924, between the hours of 7:30 and ten P. M., J. L. Ward parked his car bearing motor number 1,144,429 on Park Avenue, just south of Linwood Boulevard, in Kansas City, Missouri. When he returned to get his car, a little later, it was gone, having been stolen in the meantime. The car was later found at a garage on Grand Avenue, in Kansas City, Missouri, and was identified by the owner by the following marks: The emergency brake lever had been welded beneath the floor level, the right rear fender had a peculiar dent in it and there were scratches on the body easily recognized by the owner. The owner's keys fitted the car, but the motor number had been changed.

On the fifth day of June, 1924, a man giving his name as John A. Wilson appeared in the county treasurer's office at Leavenworth, Kansas, and asked for an application for a motor car license. This application was filled out by an employee of the treasurer's office and was for a 1924 Buick touring car, motor number 1,144,887 motor 45 and weight 3,455 pounds. The applicant also asked that the license be sent to John A. Wilson, at the Grund Hotel, Kansas City, Kansas. The employee of the office did not remember the appearance of the applicant sufficiently to identify him.

During the first ten days of June, 1924, a letter came to the Grund Hotel, Kansas City, Kansas, addressed to John A. Wilson, and a few days later a package containing an automobile license. A man, asking for the mail of John A. Wilson, appeared and got the letter and at the same time asking if there was an automobile license there. It hadn't arrived, but did a few days later, and the same man again called and received this license. Before his arrival, however, the police had inspected this license and gotten the number. This man, asking for the mail of John A. Wilson, was positively identified as the defendant Joseph W. Wagner. About the time of these occurrences, the janitor of some apartments on West 37th Street, Kansas City, Missouri, rented a garage to a man giving his name as John Wilson. Wilson put a car in the garage and locked it, but the janitor did not see the car until it was recovered by the police. The janitor was unable to identify the man giving his name as Wilson, never having seen him before.

On the 27th day of July, 1924, the defendant was arrested by the police authorities of Kansas City, and in his possession was found an automobile bill of sale with all of the blanks unfilled, save giving the motor number as 1,144,887, the license number as 323,197, the motor as number 24-45 and the description as a five-passenger Buick automobile. This bill was also dated the 28th day of July, A. D. 1924. The blank spaces for the transferee and transferor were unfilled.

On July 25, 1924, the car was found in the garage rented by the man giving his name as John Wilson, and was taken to the garage in which the owner later recovered it. When the car was discovered, it had a Kansas tag on it, No. 323,197. The motor showed to be 1,144,887, the last three figures showing that they had been changed. The license of the car was the same license that had been received at the Grund Hotel.

While he was under arrest, the defendant informed the police that a man by the name of John Wilson had called him over the telephone, wanting to trade him this Buick car. He met him, by appointment, at 24th and Broadway and they drove out to where the car should have been, but it was gone. They then drove away and defendant brought Wilson back to Broadway and let him out. Defendant further declared that this was the first time he had ever seen him and never had seen him since. When the Buick car was recovered, the battery was gone and defendant told the police officer that Wilson, when they went to look at the car, had a battery with him.

The son and wife of the defendant testified that he was at home the evening the car was stolen.

At the close of the State's evidence and at the close of all the evidence, a demurrer was filed, which was by the court overruled.

I. It is contended by appellant that his demurrer to the evidence at the conclusion of the case should have been sustained. It is not the province of this court to weigh the evidence, except in so far as it may be necessary to determine whether the State has produced substantial evidence tending to establish the guilt of defendant. The evidence connecting defendant with the commission of the crime charged is purely circumstantial, and is consistent with his guilt. It is undisputed that on the evening of May 27, 1924, J. L. Ward of Kansas City, Missouri, had his Buick car stolen in said city between 7:30 and ten o'clock P. M.; that it was parked on Park Avenue just south of Linwood Boulevard. The car cost Ward $ 1465 and was comparatively new. He testified that he next saw his car after it was stolen, at a garage on Grand Avenue, south of 19th street, on Saturday morning, July 26, 1924; that he recognized his car by two or three marks of identification; one was, that the emergency brake lever had been welded beneath the floor level. Another was, that the right rear fender had a little dent in it which he recognized. His car also had some scratches on the body that he recognized; the motor number on his car had been changed; he had his keys which fitted the car. He testified that he was certain it was his car that was stolen in Jackson County, Missouri. The number of the motor on said car was K 45-2.

Miss Margaret Riley lived at Leavenworth, Kansas, and worked in the county treasurer's office there. She testified that she had worked there about four years; that she was there during the months of May, June and July, 1924; that she made out an application for an automobile license on or about the 5th of June, 1924, to one John A. Wilson. The application was identified in court by witness as having been prepared by her. It was made out for a 1924 Buick touring car, and the engine number was 1,144,887. It was marked model 45, and the weight given as 3455. It was made to John A. Wilson. She testified that the man who applied for the license gave the address at Leavenworth, Kansas, National Hotel and directed that the license be sent to the Grund...