The State v. Weinberg
| Decision Date | 13 November 1912 |
| Citation | 150 S.W. 1069,245 Mo. 564 |
| Parties | THE STATE v. MORRIS WEINBERG, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor Judge.
Affirmed.
C Orrick Bishop for appellant.
(1) The verdict in the cause was unfair and unjust. Assuming that the property mentioned in the information was proven to have been stolen, it clearly appears from the testimony that the connection of appellant with that property was very different from that usually shown in cases of guilty receiving. (a) The testimony as to the circumstances under which the purchase of the alleged stolen property was made clearly shows that such purchase was openly made, without concealment, subterfuge secrecy, or under cover of darkness, but in broad daylight, in a place upon a populous thoroughfare and in the presence of witnesses. (b) The representations of the supposed thief were such as might have imposed upon "a reasonably prudent man, exercising ordinary caution, on his guard;" the vendor was apparently a guest at a near-by popular hotel; and his appearance, dress and manner such as to indicate that he was what he represented himself to be. (c) The property alleged to have been stolen after coming into the possession of appellant was treated as honest merchandise, exposed to open view, advertised for sale and exhibited to prospective buyers in the usual course of trade; indeed, one article was publicly sold, and publicly worn for about two weeks by one of the purchasers. (d) It is incredible that a man of ordinary caution, reasonably prudent, on his guard (if indeed appellant was such a man), would openly and above board, in his place of business, in the locality where situated, expose for sale, and invite persons to buy, property which he had cause to believe or be satisfied was stolen; or that he would openly call attention to his purchase and ask opinions as to his "bargain." (e) There was no such discrepancy in price paid for the articles and their actual value as usually accompanies a purchase of known stolen property. True, the testimony as to the coat taken from Chiswell's pawnshop indicates that the Grand Leader's price for it was $ 87.50, but there is no testimony whatever as to the value of any other garment found in possession of appellant. The manager of the Grand Leader testified that a garment was "missing" valued at $ 325, but it was never recovered; that a muskrat lined coat found at Dunn's was valued at $ 125, but this garment was never in the possession of appellant; and there was no evidence as to the value of any other. (f) The testimony that the garments in question were stolen was by no means conclusive. The manager of the Grand Leader testified as to the manner in which the fur garments were kept and handled in their store; that he could not see how anybody could come in the place where the coats were and carry them off; and yet for all he knew a coat might be sold by a dishonest salesman, without reporting the sale, and the money appropriated; all he could say was that the articles were "missing," with no report of sale. Against this testimony, all consistent with appellant's innocence of the charge of which he was convicted there was no evidence of any suspicious conduct on his part. (2) This court has recently, in the Hyde case, 234 Mo. 200, gone fully into the law regarding the admission of alleged offenses other than that charged in the information; and it is an exceedingly delicate matter, trenching closely upon the legal right of the accused to be specifically informed of the exact charge he is to meet. In cases of receiving stolen property knowing it to have been stolen, I do not question the right of the State to introduce, nor of the court to admit, testimony tending to show the reception of property other than that specified in the information, if it has a tendency to prove the scienter; but this is a matter of law, understood by the profession and not by the laymen; and where the jury are permitted to receive such testimony, how are they to apply it, in its legal and restricted effect, without being instructed as to the law applicable thereto? The statute provides that the court, whether requested or not, must instruct the jury upon all questions of law arising in the case which are necessary for their information in giving their verdict; and a failure to do so, in a felony case, necessitates a new trial. In the recent Rasco case, 239 Mo. 535, the court said that this was a collateral matter; possibly and probably so in that case, where four persons were killed at the same time and the house in which they were slain was burned with the manifest purpose of destroying evidence of the crime; there each killing was a part of the res gestae, and one could hardly be shown without evidence of the others. But in this case, a very different phase is presented. There could hardly be a question of the scienter in the Rasco case; but in the case at bar, scienter was the very gist of the offense charged. Insufficient as the whole evidence was to warrant the conviction, it must be conceded that the State's case would have been utterly worthless if based solely upon the alleged theft of the property described in the information and its reception by appellant. The testimony as to other alleged larcenies and receivings, being exceptions to the general rule of evidence in criminal cases, and having a restricted legal place in the case, appellant was entitled, as a matter of right, to have the jury instructed as to how they should consider that testimony as bearing upon the question of his guilt or innocence; otherwise they may have believed that they were warranted in convicting him upon evidence of matters not charged, inasmuch as that evidence had been delivered to them with the sanction of the court. Hence the matter was not collateral, but integral, of the very essence of the charge, and thus coming strictly within the command of the statute.
Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
(1) Evidence as to other sales of stolen goods by King to appellant was competent as tending to show guilty knowledge in the purchase on which the information was based. State v. Goldblat, 50 Mo.App. 189; State v. Richmond, 186 Mo. 86. (2) Instruction 5 is: "The mere naked fact of the possession of said property by defendants, if such is the fact, raises no presumption that defendants knew such property was stolen." This instruction was favorable to the appellant, as it stated to the jury the fact that appellant had the possession of said goods was no evidence and raises no presumption that he knew such property was stolen.
Appellant, Morris Weinberg, and his son, Julius Weinberg, were jointly prosecuted by information in the circuit court of the city of St. Louis, charged with grand larceny in the first count, and with the felony of receiving stolen goods, knowing the same to be stolen, in the second count. Upon a trial appellant was convicted under the second count and his punishment assessed at a term of two years in the penitentiary. From the judgment entered he appealed to this court. His codefendant, Julius Weinberg, was acquitted.
The property described in each count of the information was the same, to-wit, one man's black overcoat with muskrat collar, the property of the Stix, Baer & Fuller Dry Goods Company, of the value of $ 87.50.
The evidence for the State tended to prove these facts, namely Stix, Baer & Fuller Dry Goods Company, a corporation known as the Grand Leader, is engaged in the retail clothing business in the city of St. Louis, and about the middle of October, 1910, received from the city of New York a consignment of eleven high-priced overcoats. One of these coats was missed from the stock on the 29th day of November, 1910, and several others were missing within a few days thereafter. Detectives were employed to locate the missing garments. On December 12 one of the coats was found at Dunn's pawnshop in said city, where a few days before it had been pawned for thirty dollars by a person giving his name as Condon. On the said 12th day of December appellant's son, Julius Weinberg, called at the said pawnshop, having the ticket issued to Condon for the coat, and offered to redeem it, saying a friend of his in the hotel had asked him to get it for him. A detective named Usher working on the case came into the pawnshop at the time, and young Weinberg, in answer to an inquiry, stated to Usher that he got the ticket that morning from a man named King, who called at their store, but that he did not know where he was at that time. Usher then went to appellant's place of business and appellant told him he got the ticket two weeks before from a man supposed to be stopping at the Laclede Hotel, just across the street from appellant's place of business. Appellant was asked by Usher if he had any more such tickets or fur-lined overcoats and answered that he had not. On December 28, 1910, the black overcoat with the muskrat collar, described in the information, was found in a pawnshop conducted in said city by a man named Chiswell. This coat had been pawned a week before by a bartender who had recently purchased it from a man named Fischer, who in turn had purchased it from appellant on November 22, 1910, as shown by a written receipt for the purchase price which was introduced in evidence. When the possession of this coat was traced to appellant he was asked if he had sold it to Fischer. He first said he could not recall it, but later said he had. Two detectives then went to appellant's home and found there, apparently concealed, three of the...
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