Opinion
No. 40493.
June 13, 1949.
Defendant was indicted for burglary and larceny, and also under the Habitual Criminal Act, but was found guilty of larceny only. The indictment did not improperly intermingle the charges of burglary and larceny, and the evidence was sufficient to support the larceny conviction. There was no error as to instructions either given or refused. An improper jury argument as to defendant being an ex-convict does not require a reversal under the circumstances of the case.
1. CRIMINAL LAW: Larceny: Indictment Sufficient. The indictment for burglary and larceny substantially follows the statute and is sufficient.
2. CRIMINAL LAW: Larceny: Submissible Case. Defendant was surprised by police hiding near some of the stolen goods but escaped, and later confessed to Chicago police. There was a submissible case of larceny for the jury.
3. CRIMINAL LAW: Burglary: Larceny: Instruction Sufficient. The state's instruction, when read as a whole, does not assume that the property shown by the evidence was the stolen property described in the indictment.
4. CRIMINAL LAW: Confession: Instruction Properly Refused. An instruction as to defendant's admissions was properly refused, being correctly covered by other instructions.
5. CRIMINAL LAW: Circumstantial Evidence: Refusal of Cautionary Instruction Not Error. The evidence was not wholly circumstantial and it was not mandatory to give a cautionary instruction on such evidence.
6. CRIMINAL LAW: Refused Instruction: Substitute Instructions Not Required. The trial court was not required to give substitute instructions for defendant's refused instructions.
7. CRIMINAL LAW: Improper Jury Argument: Objections Sustained: Reversal Not Required. The trial court having sustained objections to an improper jury argument as to defendant being an ex-convict, a reversal is not required where the jury did not convict defendant under the Habitual Criminal Act, but convicted him of larceny only, and assessed the minimum penalty.
Appeal from Jackson Circuit Court; Hon. Allen C. Southern, Judge.
AFFIRMED.
Ira B. McLaughlin for appellant.
(1) The indictment is insufficient to charge larceny; it fails to state what property was allegedly stolen; it is vague, indefinite and uncertain. The attempt to charge larceny is jumbled and intermingled with the charge of burglary. It is not kept separate from the charge of burglary, and is not concise or complete. State v. Dooly, 64 Mo. 146; State v. Moten, 207 S.W. 768, 276 Mo. 354. (2) The evidence is insufficient to sustain the verdict. As to the larceny attempted to be charged there is a total failure of proof. State v. McMurphy, 25 S.W.2d 79, 324 Mo. 854; State v. Mispagel, 106 S.W. 513, 207 Mo. 557; State v. Shapiro, 115 S.W. 1022, 216 Mo. 359; State v. Ballard, 16 S.W. 525, 104 Mo. 634; State v. Plant, 107 S.W. 1076, 209 Mo. 307; State v. Durbin, 29 S.W.2d 80; State v. Holt, 106 S.W.2d 466. (3) The court erred in giving to the jury Instruction B on the subject of grand larceny. Said instruction assumed the truth of controverted facts and was not confined within the purview of the pleadings. State v. Jones, 268 S.W. 83, 306 Mo. 437; State v. Langley, 154 S.W. 713, 248 Mo. 545; State v. Bonner, 77 S.W. 463, 178 Mo. 424. (4) The court erred in refusing to give to the jury requested Instruction 7, a cautionary instruction relative to the consideration of verbal statements allegedly made by defendant. State v. Henderson, 85 S.W. 576, 186 Mo. 473; State v. Williamson, 123 S.W.2d 42, 343 Mo. 732. (5) The court erred in refusing to give to the jury requested Instruction 11 on the subject of circumstantial evidence. State v. Stewart, 44 S.W.2d 100, 329 Mo. 265; Gulotta v. United States, 113 F.2d 683. (6) The court erred in failing to give a proper instruction on the subjects suggested by Instructions 7 and 11, if it deemed faulty the instructions that defendant requested. State v. Hendrix, 73 S.W. 194, 172 Mo. 654; State v. Gibilterra, 116 S.W.2d 88, 342 Mo. 577; State v. Aitkens, 179 S.W.2d 84, 352 Mo. 746. (7) The assistant prosecuting attorney, in closing argument, transcended the scope of legitimate argument to such an extent as to constitute reversible error. State v. Tiedt, 206 S.W.2d 524; State v. Jackson, 83 S.W.2d 87, 103 A.L.R. 339; Calloway v. Fogel, 213 S.W.2d 405; Casto v. Ry. Exp. Co., 219 S.W.2d 276.
J.E. Taylor, Attorney General, Smith N. Crowe, Jr., and Paul N. Chitwood, Assistant Attorneys General, for respondent.
(1) The indictment is in proper form and is sufficient to charge the crime of grand larceny. State v. Tipton, 307 Mo. 500, 271 S.W. 55; State v. Corey, 69 S.W.2d 297; State v. Crunkleton, 278 S.W. 982; State v. Bloomer, 231 S.W. 568; Sec. 4456, R.S. 1939. (2) The verdict is in proper form and is responsive to the law, the indictment, the evidence and the instructions of the court. Secs. 4456, 4457, R.S. 1939; State v. Barbour, 347 Mo. 1033, 151 S.W.2d 1105. (3) Allocution, judgment and sentence are in proper form and comply with the statutes. Sec. 4456, R.S. 1939. (4) There is sufficient evidence to support a verdict of guilty of grand larceny. State v. Hawkins, 165 S.W.2d 644; State v. Hoskins, 327 Mo. 313, 36 S.W.2d 909; State v. Lyle, 353 Mo. 386, 182 S.W.2d 530; State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701; State v. Pillow, 169 S.W.2d 414; State v. Vaughan, 152 Mo. 73, 53 S.W. 420; State v. Moore, 117 Mo. 395, 22 S.W. 1086; Satte v. Pippin, 209 S.W.2d 132; Ryan v. United States, 99 F.2d 864, certiorari denied, 59 S.Ct. 484, 306 U.S. 635, 83 L.Ed. 1037, rehearing denied, 59 S.Ct. 586, 306 U.S. 668, 83 L.Ed. 1063; State v. Skibiski, 245 Mo. 459, 150 S.W. 1038; State v. Meadows, 330 Mo. 1020, 51 S.W.2d 1033; State v. Breeden, 180 S.W.2d 684. (5) The court did not commit error in giving to the jury Instruction B. State v. Shout, 236 Mo. 360, 172 S.W. 607; State v. Cohen, 100 S.W.2d 544; State v. Moore, 80 S.W.2d 128; State v. Barbata, 336 Mo. 362, 80 S.W.2d 865; State v. Smith, 237 S.W. 482; State v. Swearengin, 234 Mo. 549, 137 S.W. 880; State v. Lively, 311 Mo. 414, 279 S.W. 76; State v. Talbert, 354 Mo. 410, 189 S.W.2d 555; State v. Sapp, 356 Mo. 705, 203 S.W.2d 425; State v. Willard, 346 Mo. 773, 142 S.W.2d 1046; State v. Cain, 31 S.W.2d 559; State v. Williams, 248 S.W. 922; State v. Emory, 246 S.W. 950; State v. Weisman, 238 Mo. 547, 141 S.W. 1108; State v. Deuser, 345 Mo. 628, 134 S.W.2d 132; State v. Spidle, 342 Mo. 571, 116 S.W.2d 96; State v. English, 11 S.W.2d 1020; State v. Montgomery, 230 Mo. 660, 132 S.W. 232; State v. Reppley, 278 Mo. 333, 213 S.W. 477; State v. Reinke, 147 S.W.2d 464; State v. Fitzgerald, 174 S.W.2d 211; State v. Decker, 326 Mo. 946, 33 S.W.2d 958; State v. Lippman, 222 S.W. 436. (6) The court did not commit error in giving to the jury Instruction H. State v. Breeden, 180 S.W.2d 684; State v. Conway, 241 Mo. 271, 145 S.W. 441; State v. Connor, 252 S.W. 713; Sec. 448, R.S. 1939. (7) The court did not commit error in refusing to give to the jury Instruction 7. State v. Pope, 338 Mo. 919, 92 S.W.2d 904. (8) The court did not commit error in refusing to give to the jury Instructions 9, 11 and 12. State v. Huff, 353 Mo. 791, 184 S.W.2d 447; State v. Hutsel, 208 S.W.2d 227; State v. Foster, 355 Mo. 577, 197 S.W.2d 313. (9) The court did not err in refusing to give defendant's instruction in the nature of a demurrer offered at the close of the State's case and offered again at the close of the entire case, and that the testimony offered by the State was sufficient to sustain the allegations of the indictment that the defendant entered the storeroom by forcibly bursting and breaking an outer window and door of said store building. State v. Decker, 326 Mo. 946, 33 S.W.2d 958; State v. Davis, 196 S.W.2d 630; State v. Catron. 317 Mo. 894, 296 S.W. 141. (10) The court did not err in permitting the assistant prosecuting attorney to make the alleged improper remarks in his argument to the jury, and did not err in failing to discharge the jury because of said remarks, as complained of by the defendant. State v. Gordon, 253 Mo. 510, 161 S.W. 721; State v. Stark, 72 Mo. 37.
On an indictment for burglary and larceny, defendant was convicted of grand larceny and sentenced to a term of two years in the state penitentiary. He appeals and we will discuss his assignments of error in order.
First, as to the sufficiency of the indictment which, omitting formal parts, after charging appellant with previous conviction [725] of a felony, proceeds as follows: ". . . Charles H. Miller, on the 21st day of June, 1945, at the County of Jackson and State of Missouri, did then and there unlawfully, feloniously and burglariously break into and enter a certain building to-wit: the store room of Bergfeldt-Roueche, a corporation, located at Room 205 Dwight Building, 1005 Baltimore Avenue, Kansas City, Jackson County, Missouri, by forcibly bursting and breaking an outer window and door of said store room, there situate, the same being in a building in which divers goods, wares, merchandise, and valuable things were then and there kept for sale and deposited, with felonious intent the said goods, wares, merchandise and valuable things in said building then and there being, then and there unlawfully, feloniously and burglariously to steal, take and carry away; One Hundred (100) bolts of imported woolen cloth of the value of Three Thousand ($3,000) Dollars, Sixteen (16) woolen pieces of cloth, cut in the shape of pants legs of the value of One Hundred Sixty ($160.00) Dollars, and One (1) Royal Portable Typewriter of the value of Thirty-five ($35.00) Dollars, of the aggregate value of Three Thousand One Hundred Ninety-five ($3,195.00) Dollars, of the goods and property of Bergfeldt-Roueche, a corporation, in the said building then and there being found, did then and there unlawfully, feloniously and burglariously steal, take and carry away; against the peace and dignity of the state." (T. 3)
Appellant, though conceding that burglary and grand larceny may both be charged in the same count, says the two charges are so intermingled that it is not clear what property appellant is charged with stealing. He cites the cases of State v. Moten, 276 Mo. 354, 207 S.W. 768, and State v. Dooly, 64 Mo. 146. The defects found in the information in the Moten case and the indictment in the Dooly case are not similar to that claimed by appellant in the instant case. The indictment here is substantially like those approved in State v. Tipton, 307 Mo. 500, 271 S.W. 55, and State v. Crunkleton, (Mo.) 278 S.W. 982. Like the forms of many indictments which have been followed through the years with the approval of this and other courts, it could have been written in simpler and more modern style, but it substantially follows the statute and we hold it sufficient to apprise appellant of the offense with which he is charged.
As to the sufficiency of the evidence to sustain the charge of larceny: Appellant was identified by an employee of Bergfeldt-Roueche Corporation as a man who visited the corporation's place of business in Kansas City a few days prior to June 21, 1945, and made some inquiries about purchasing a suit of clothes. He wore a T.W.A. uniform. On the morning of June 22, when this employee went to his employer's shop he found that the door had been tampered with from the inside. After forcing entrance he discovered that many bolts of English woolen cloth, some pieces of cloth cut to trouser lengths, a typewriter and a trash box were missing. The outside window was open and there were marks upon the window sill and granting. There was evidence that the missing property was of the value of about $3,000.00. On June 22 police officers discovered a box containing a large amount of woolen cloth secreted near a country road about five miles north of Kansas City. The officers hid near the box. Some time that night a man dressed in a T.W.A. uniform, later identified as appellant, drove a T.W.A. station wagon back and forth a few times near the place where the box was hid. Then the man alighted from the station wagon and went down where the "stuff" was. When he came back the officers closed in, shouting that they were police officers. The man fled, one of the policemen shot at him, but he got away. In the station wagon were found two balls of twine, some wrapping paper and tape and appellant was identified as having recently purchased similar articles. Shortly thereafter appellant was arrested by police officers in Chicago. They testified that he told them he took the woolen goods because he had an argument with a clerk in the shop and wanted revenge; that he took the goods in a T.W.A. station wagon to the country and when he went back to get them he was shot at [726] and wounded in the leg. When arrested in Chicago he had a bullet wound in one of his legs. The stolen property was returned to the Bergfeldt-Roueche corporation by someone not named in the record.
Appellant argues that the evidence does not clearly identify the stolen property; also that cross-examination disclosed discrepancies in the testimony of some of the police officers and other witnesses.
The evidence clearly shows that certain property was stolen. At least some of this property was recovered and was sufficiently identified, although not in the exact language contained in the indictment. Appellant's suspicious conduct in furtively approaching the place where the stolen property was secreted, in the darkness of night, his flight from the police, coupled with his oral confessions to the Chicago officers, complete the case and make the evidence amply sufficient to sustain the charge of grand larceny. The credibility of the witnesses and the weight to be given their testimony was, of course, for the jury.
Instructions: Appellant complains that a portion of instruction "B" assumes the truth of controverted facts and is not confined within the purview of the pleadings. The instruction reads, ". . . if you find and believe from the evidence beyond a reasonable doubt . . . that . . . defendant . . . did steal . . . the property described in the indictment and shown by the evidence in this case . . . the goods and property of Bergfeldt-Roueche, and unless you find the facts to be as above stated, you will acquit the defendant . . ." Appellant says that the part emphasized assumes that the property shown by the evidence is the same as that described in the indictment and that it belonged to Bergfeldt-Roueche.
Perhaps the instruction could have been better phrased, but when read in its entirety it does not assume the truth of any fact. The phrase "if you find and believe from the evidence beyond a reasonable doubt" relates to all the facts hypothesized and this is made more certain by the phrase "and unless you find the facts to be as above stated." Substantially similar instructions have been approved by this court over objections like that now made by appellant. [State v. Willard, 346 Mo. 773, l.c. 785, 142 S.W.2d 1046; State v. Cohen, (Mo.) 100 S.W.2d 544.]
The court refused to give instruction No. 7 offered by appellant. This would have told the jury that oral statements or admissions of guilt by defendant should be received with "great care and caution." But the court gave instruction No. 3, offered by appellant, that appellant could not be convicted on his admissions to the officers unless the same were corroborated by other evidence, and also gave the customary instruction as to credibility of witnesses. We find that the court did not err in refusing instruction No. 7. [State v. Pope, 338 Mo. 919, 92 S.W.2d 904.]
No error was committed in the refusal of appellant's instruction No. 11, a cautionary instruction on circumstantial evidence. The evidence was not wholly circumstantial and it was not mandatory to give such an instruction. [State v. Huff, 353 Mo. 791, l.c. 798, 184 S.W.2d 447.]
It being unnecessary to instruct on the matters contained in appellant's refused instructions No. 7 and 11, the court was not required to give substitute instructions therefor.
Appellant claims error in the following remarks made by the assistant prosecuting attorney in his closing argument to the jury:
"Now, gentlemen of the jury, after all, this is your town. I am just your servant here, just working for you, trying to keep thieves from carrying the town off. If you want ex-convicts, and that is what this man is, he is not a boy, he is a man, he was 20 years old when he went to the Industrial Reformatory for stealing this mail.
"MR. RUCKER: I object to that. That is not true. He was 18 years old.
"THE COURT: You will be governed by the evidence.
"MR. RUCKER: I object to that statement and ask that the jury be instructed to disregard it.
"THE COURT: You will be governed by the evidence.
[727] (To which action and ruling of the Court the defendant duly excepted.)
"MR. GILWEE: (continuing) If you want a man who is an ex-convict, if you want him loose in the streets of your town, running around in the middle of the night prowling places, that is your business, but don't come crying in here that the town is being overrun by burglars and robbers if you turn him loose. He don't belong here. He wasn't raised here. He is just another one of these men that get out of the penitentiary and come to this town for a while and they try to carry the town away with them.
"MR. RUCKER: I object to that statement as highly inflammatory and prejudicial and not based on any evidence in the case.
"THE COURT: Let it be stricken.
"MR. RUCKER: I ask that Mr. Gilwee be reprimanded.
"THE COURT: Confine your argument to the evidence.
"MR. RUCKER: And I ask that the jury be discharged because of the inflammatory and prejudicial statement.
"THE COURT: Let it be denied."
The objection to the first part of the quoted argument concerned the age of appellant when previously convicted. The mis-statement of appellant's age, if so, does not compel a reversal of the case.
The further part of the argument as to appellant being an ex-convict was within the evidence and the fact was material on the extent of his punishment, but not as to his guilt of the charge for which he was being tried. The further statement as to appellant's non-residence was also within the evidence, but was wholly immaterial upon the question of his guilt.
The argument was improper, but does not require a reversal. The trial court sustained appellant's objection to the extent of ordering the remarks stricken and admonishing the prosecutor to confine his argument to the evidence. The argument seems to have had no prejudicial effect. Although the evidence of appellant's guilt was strong and his previous conviction was undisputed, the jury did not convict him under the Habitual Criminal Act. It found him guilty of grand larceny only and gave him the minimum sentence. [State v. Gordon, 253 Mo. 510, 161 S.W. 721.]
The cases of State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, and State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87, cited by appellant on this assignment are not in point. In each of those cases the extreme penalty of death was assessed and the argument for the State was much more prejudicial than in the instant case.
Finding no reversible error the judgment is affirmed. All concur.