Summary
In State v. Park, 322 Mo. 69, 16 S.W.2d 30, the appellant was [141] charged with receiving stolen property — a set of harness.
Summary of this case from State v. SmithOpinion
March 2, 1929.
1. SEARCH WARRANT: Admission of Evidence. If the search warrant was illegal, the search thereunder was unauthorized, and testimony of the officers concerning the discovery of harness procured thereunder is improperly admitted in the trial of a defendant charged with receiving stolen harness.
2. ____: Illegal: Admission As Evidence: Cured by Other Evidence. Although the search warrant was illegal and the testimony of the officers concerning the discovery of harness procured thereunder should have been excluded, it does not follow that a judgment of conviction of receiving stolen harness must be reversed; such error may be cured by the subsequent conduct and admissions of the defendant, and his testimony that he had possession of the harness, but without knowledge that it was stolen.
3. JURY: Time to Challenge. The allowance of time to make challenges of the jury, in cases in which the statute specifies no time, is within the discretion of the trial court, and its exercise cannot be disturbed in the absence of proof of its abuse; and where the court offered to allow more time if it was requested, and counsel stated he could not use more time, there was no abuse of the court's discretion.
4. INSTRUCTIONS: Covered by Others. It is not error to refuse defendant's requested instructions on the subjects of reasonable doubt, presumption of innocence and burden of proof, where these subjects were covered in a given instruction in the usual and often approved form.
5. ____: Collateral Matters: Testimony of Accomplice: Credibility: Corroboration. The credibility of a witness who has previously been convicted of crime, and of an accomplice, and of the necessity of corroboration of such a witness, are subjects upon which the court is not required to instruct, and where defendant's counsel does not prepare and submit instructions on such collateral matters the court is not required to prepare them even though requested by defendant to do so.
6. ____: Accomplice: Receiving Stolen Goods. An instruction on the testimony of an accomplice is not proper in the trial of a defendant charged with receiving stolen goods, where the alleged accomplice was the thief who stole them and sold them to defendant. The thief and the receiver of the stolen goods are not accomplices in the crime of receiving the stolen goods, knowing it to be stolen.
7. RECEIVING STOLEN GOODS: Guilty Knowledge: Evidence of Other Crimes. Evidence tending to prove that defendant received from the same thief stolen harness and automobile tires other than the harness charged in the information, at a time subsequent to but not remote from, and under circumstances connected with, the receipt in question, is admissible to show guilty knowledge; and an instruction telling the jury that they have a right to consider such evidence in connection with the question of guilty knowledge, is not error.
8. RECEIVING STOLEN GOODS: Instruction: Matters Covered by Others. An instruction requiring the jury to find the facts constituting the crime charged against defendant beyond a reasonable doubt is not erroneous because it does not require them to consider his good character or the presumption of his innocence or because it does not advise them as to the burden of proof, where these matters are sufficiently and properly covered in separate instructions.
9. ____: At Different Times: Instruction. The information having charged that defendant had received two sets of harness worth one hundred dollars, knowing them to have been stolen, the State had the right to instructions based on the testimony of a witness that the two sets were delivered to him at the same time, where the proof tends to show that each set was worth thirty dollars or more, although defendant's evidence tends to prove that the two sets were delivered at different times.
10. ____: Guilty Knowledge: Instruction: Inference from Facts. An instruction requiring the jury to find that "the facts and circumstances known to and by defendant in connection with either buying or receiving the harness, if he did so buy or receive, were such as to cause him to know that the said property was stolen," requires the jury to find that defendant knew the harness he received was stolen.
11. ____: Instruction: Omission of Larceny and Limitations. In the trial of defendant charged with receiving stolen harness, knowing it to have been stolen, where the evidence shows and the information charges that the larceny and its later reception by defendant were in March, the information was filed in June and the case was tried in September, and no issue is made under the evidence that the crime was not committed on or about the time charged, an instruction which requires the jury to find that the harness was stolen from the prosecuting witness, is not reversible error for that it omits to define larceny and omits to require the jury to find that the property was taken within the limitation period. Defendant was not, in view of these facts, prejudiced by the omissions.
12. ____: ____: Assumption of Fact. An instruction on the subject of guilty knowledge which assumes that the harness of the prosecuting witness was stolen is not error, if another instruction specifically requires the jury to find that the harness was stolen from him.
13. ____: ____: Possession: Presumption of Knowledge. The failure of the court to instruct the jury that the naked possession of the stolen harness by defendant raises no presumption that he knew it was stolen, is not error, where defendant requests no instruction on the subject — a collateral matter.
14. ____: Admission of Incompetent Evidence: Failure to Point Out. It is the duty of counsel for appellant to point out the place in the record at which challenged rulings appear; and unless the place is pointed out, an assignment that the testimony admitted to identify the harness found in appellant's possession as the property of the prosecuting witness was hearsay, will not be considered; and particularly so, where the defense was lack of knowledge that the harness was stolen, and not its identity.
15. ____: Argument to Jury: Presumption Arising From Possession. It cannot be ruled that the trial court permitted the prosecuting attorney to tell the jury that the possession of property recently stolen raises the presumption that the possessor is the thief, where the court told the jury that there is no such presumption in law. And a further remark of the court that "whether there is any such presumption, little or much, as a matter of argument is for the jury to pass upon," there was no error, for the court evidently meant inference of fact instead of "presumption," and the jury could not have misunderstood the ruling, there being no objection that the jury could not infer that one in possession of stolen property soon after its theft was a receiver of said property with knowledge that it had been stolen.
16. ____: ____: Reference to Family. A remark by the prosecuting attorney in his closing argument to the jury that "his family ought to have been looking out for him long ago" suggests that it was made in response to some appeal to the jury for sympathy for defendant on account of his family, and a ruling directing counsel to keep within the evidence, in response to defendant's objection that the remark was unsupported by any fact in evidence and had a prejudicial and inflammatory influence on the jury, was sufficient. The defendant could not have been improperly prejudiced by the remark.
17. ____: Verdict: Person from Whom Stolen. A verdict finding the defendant guilty of receiving stolen property worth over thirty dollars, knowing it was stolen, and assessing his punishment at imprisonment in the penitentiary for two years, finds all the issues in the case, and is sufficient to support a judgment, although it does not find that defendant received property stolen from the person named in the information as the owner. The statute (Sec. 3331, R.S. 1919) makes it an offense to receive goods "stolen from another," but the identity of the owner of the stolen goods is not within its reasonable intendment as an essential element of the crime.
Corpus Juris-Cyc. References: Criminal Law, 16 C.J., Section 1110, p. 571, n. 93; Section 1195, p. 610, n. 22; Section 1393, p. 683, n. 77; Section 2271, p. 917, n. 67; p. 920, n. 82; Section 2414, p. 999, n. 84; Section 2426, p. 1005, n. 54; Section 2475, p. 1035, n. 54; Section 2490, p. 1048, n. 67; Section 2503, p. 1061, n. 61; Section 2506, p. 1063, n. 85; 17 C.J., Section 3480, p. 183, n. 50; Section 3664, p. 323, n. 54; Section 3675, p. 332, n. 56; Section 3706, p. 349, n. 94. Juries, 35 C.J., Section 478, p. 415, n. 91. Receiving Stolen Goods, 34 Cyc., p. 515, n. 14; p. 530, n. 19; p. 531, n. 21.
Appeal from Cass Circuit Court. — Hon. Ewing Cockrell, Judge
AFFIRMED.
J.R. Nicholson and D.C. Chastain for appellant.
(1) The motion to quash the search warrant and suppress the evidence thereunder should have been sustained. Art. 2, secs. 11, 23. Mo. Constitution; Secs. 4115, 4116, R.S. 1919; Laws 1923, p. 244; State v. Barrelli, 296 S.W. 413; State v. Owens, 302 Mo. 348; State v. Lock, 302 Mo. 400; State v. Tunnell, 302 Mo. 433; State v. Rebasti, 267 S.W. 858; State v. Reis, 268 S.W. 391; State v. Stogsdill, 297 S.W. 977. (a) The search warrant did not describe the place to be searched. (b) The search authorized was unreasonable as applied to the property attempted to be described. (c) Neither the application nor the warrant described the property as belonging to or in the possession of the defendant and the warrant only finds that there was probable cause to believe that the liquor laws were being violated; there was no finding that there was reasonable grounds for a search for stolen property, and no positive proof that would authorize a search in the nighttime under Sec. 4117, R.S. 1919. (2) Everything that happened in connection with the search warrant should be suppressed. State v. Pierce, 269 S.W. 406; State v. Randazzo, 300 S.W. 755. (3) It was error to admit the testimony of the witnesses as to the alleged stolen tires and harness which they took on the second search April 9th. State v. Perkins, 285 S.W. 152. The officers after executing the search warrant on April 5th further executed the same search warrant and again searched the defendant's premises on April 9th. The second search was void because the warrant had been fully executed by the first search and first return and because of the delay. State v. Perkins, supra. (4) The testimony of sales of stolen property subsequent to that charged in the information was not admissible. 17 R.C.L. 94; State v. Smith, 250 Mo. 350; State v. Hedgpeth, 311 Mo. 452. (a) Intent is not of essence of the offense of receiving stolen goods. State v. Rich, 245 Mo. 167; State v. Batterson, 274 S.W. 43. (b) Where the character of the crime shows on its face the intent with which it was done evidence of other offenses are inadmissible. State v. Spray, 174 Mo. 74; State v. Hill, 273 Mo. 329; State v. Bersch, 276 Mo. 397. (c) Proof of other charges create a prejudice against a defendant and confuses a jury and generally leads to a conviction. State v. Tunnell, 296 S.W. 427. The evidence that the defendant subsequent to the purchase of the Keeney harness bought other harness from the thief would not be any evidence that he knew the Keeney harness were stolen. These other transactions were at various intervals after the sale of the Keeney harness and Luther says he sold the defendant seven other sets of stolen harness after that time. These subsequent acts, not at all connected with the larceny of the Keeney harness, could not possibly show that the defendant acted with guilty knowledge concerning the Keeney harness. The testimony was highly prejudicial. The defendant was not called upon to meet this class of testimony nor in a position to do so; his defense was that he bought the harness in good faith. There was no proof other than Luther's testimony that these subsequent sets were stolen and the defendant was confronted with the testimony of these subsequent sales without an opportunity to investigate the fact as to whether or not these other harness were in fact stolen. The verdict did not find that the harness stolen belonged to Keeney, but only that the defendant had received stolen property knowing that it was stolen. The court permitted the evidence of ten sets of harness to be admitted, and this incomplete special verdict shows the error of the admission of this testimony. (5) The verdict is a special one, not responsive to all of the essential elements of the charge, and is insufficient. State v. DeWitt, 186 Mo. 61; State v. Pollock, 105 Mo. App. 273; State v. Reeves, 276 Mo. 339; State v. Miller, 255 Mo. 229; Huffman v. State, 89 Ala. 33. The rule is well settled that a special verdict must be responsive to the charge. The verdict here does not find the defendant guilty generally, but finds him guilty of receiving stolen property worth over thirty dollars knowing it was stolen. This verdict does not find, as charged in the information and required by the court's instruction, that harness was stolen, that it was the property of Keeney, mentioned in the information. In view of the fact that the court admitted evidence of other sales to the defendant including sales of two sets of automobile tires which were testified to have been stolen by Luther it was necessary that the verdict expressly find that the defendant received the property with which he stood charged. That is, here are a dozen thefts by Luther and testimony by him of ten sales of harness and a sale of two sets of tires to the defendant, the information was based upon the sale of the Keeney harness and the State's main instruction required that to be found before the defendant could be convicted. State's instruction three submits the issue of much other stolen property, but the verdict does not so find, and under the authorities it is insufficient and will not support the judgment. (6) The court should have given a cautionary instruction as to the weight to be given the testimony of the witness Luther who was an accomplice. State v. Donnelly, 130 Mo. 642; State v. Sprague, 149 Mo. 409; State v. Goforth, 136 Mo. 111; State v. Glazebrook, 242 S.W. 928. The defendant expressly requested the court to give such an instruction. (7) The argument of the prosecuting attorney and the courts ruling and failure to instruct on defendant's motion thereon was highly prejudicial to the defendant and warrants reversal. State v. Bulla, 89 Mo. 595; State v. Spiritus, 191 Mo. 24; State v. Richmond, 186 Mo. 71; State v. Gowdy, 307 Mo. 352. (8) The court erred in requiring the defendant to make his challenges in twenty minutes. The action was arbitrary and oppressive. (9) It was error to receive the testimony of Mrs. Luther that the defendant had sent her some money. (10) The defendant's request of the court that the instruction on credibility of witnesses including the matter of conviction of crime should have been granted. The defendant was entitled to have the jury told in plain words that in determining the credibility of a witness they might take into account the previous conviction of the witnesses of crime. (11) The court's instructions on the subject of burden of proof did not cover every element of the offense charged and was error. State v. Anderson, 86 Mo. 309; State v. Mav, 172 Mo. 630; State v. Baker, 136 Mo. 74; State v. Hardelein, 169 Mo. 579; 16 C.J. 986, 1025. The court is required by Section 4025 to instruct the jury upon all questions of law which are necessary for their information in giving their verdict, which shall include, when necessary, the subject of good character and reasonable doubt, and a failure to so instruct is cause for setting the verdict aside. State v. Broaddus, 315 Mo. 1279. (12) It was error to refuse the defendant's request that sales of other stolen goods were admissible only for the purpose of determining whether the defendant had guilty knowledge of the Keeney harness being stolen. Instruction Number three given by the court was not sufficient, it referred to other transactions without limiting it to receiving goods known to the defendant to have been stolen and was not limited to such deals with the witness Luther but included other parties. What other "transactions" meant or was understood by the jury is a matter of conjecture. (13) The court erred in giving Instruction 1; State v. Constitino, 181 S.W. 1155; State v. Baker, 246 Mo. 357. (a) The instruction does not require the jury to consider the good character of the defendant, the presumption of innocence, the credibility of witnesses and did not require the jury to find the value of the harness beyond a reasonable doubt. (b) It is erroneous in law and confusing in fact because it required a finding that the Keeney harness described in the information was stolen, and that the facts known to the defendant in connection with either buying or receiving it were such as to cause him to know the property was stolen. The information described two sets of harness and the defendant's proof was that he bought two sets of harness at different times, for different prices and on different dates. The first set for which he paid fifty dollars was the one exhibited to the jury while the second set was purchased for $22.50. This information authorized a conviction if the defendant knew the last set of Keeney harness bought by him was stolen he was convicted for buying the first set. (c) The instruction is erroneous because it does not require the jury to find the defendant had actual knowledge or did know that the harness was stolen but only facts such as to cause him to know that the same was stolen. (d) It was erroneous because it assumes that the Keeney harness was stolen. (e) It is erroneous in that it fails to define the offense of larceny and to require a finding that the harness was feloniously taken and that it was the property of Keeney. The instruction did not require that it be found that the harness was the property of Keeney, but only that it was taken from him, and said instruction did not require that it be found that the property was taken within the period of the Statute of Limitations. (14) The giving of instruction number three by the court was erroneous. State v. Norman, 232 S.W. 452; State v. Smith, 37 Mo. 58; State v. Johnson, 234 S.W. 794; State v. Pollock, 105 Mo. 416; State v. Murphy, 292 Mo. 275; State v. Rich, 245 Mo. 162; State v. Meininger, 306 Mo. 675; State v. Powers, 255 Mo. 263; State v. Cohen, 254 Mo. 437. (a) This instruction assumes that the Keeney harness was stolen and in express terms says that evidence of other transactions were admitted for the purpose of showing whether the defendant knew the Keeney harness was stolen. (b) It is erroneous because it refers to other transactions without defining what is meant thereby, and without limiting the same to transactions concerning stolen property and limiting them to transactions with the witness Luther, and further limiting it to such transactions prior to the sale of the Keeney harness. (c) It assumes that there were other transactions between the defendant and the witness Luther and does not require the jury to find that there were any such transactions. (d) It is further erroneous in that it authorizes the consideration of transactions with other parties when there is no evidence of any transactions with any other parties and assumes that there were such transactions and is misleading to the jury. (e) It is further erroneous because it authorizes the jury to consider the evidence of other offenses than the one charged in the information and especially subsequent offenses and the reasons advanced in support of our objections to the reception of such evidence apply equally to this objection to the institution.
Stratton Shartel, Attorney-General, and Mary Louise Ramsey, Special Assistant Attorney-General, for respondent.
(1) The search warrant did sufficiently describe the premises to be searched "as nearly as may be" under the particular circumstances of this case. Under the statute relating to intoxicating liquors the warrant is directed against the place where there is probable cause to believe the liquor law is being violated. It is not necessary to mention who owns or has possession of the land. Here the land was described with complete and technical accuracy, and the trial judge found there was reasonable and probable cause to search all the premises (to which finding the defendant expressly did not except). That is sufficient. Laws 1923, p. 244; State v. Struce, 1 S.W.2d 841; United States v. Wihinier, 284 F. 528; Tynan v. United States 278 S.W. 661; Boone v. Commonwealth, 268 S.W. 286; State v. Ditmar, 232 P. 321; State v. Markuson, 73 N.W. 82. The finding of the justice that there was probable cause to believe that the liquor laws were being violated on the premises was sufficient to make the warrant valid, and the entry of the officers on the premises legal: that being true, their testimony about seeing the stolen harness after they were on the premises was properly admitted. State v. Horton, 278 S.W. 661. Furthermore, the basis upon which the warrant was issued being a violation of the liquor law, it was proper to direct a search either in the daytime or nighttime without positive proof. Laws 1923, p. 244. (2) Even if the search warrant were invalid, the defendant has not suffered prejudicial error, because the harness was found, identified and taken away by the owner, Keeney, who had a right to go there after his own property, but even if he were a trespasser he was a private citizen and his testimony is therefore competent. Madden v. Brown, 40 N.Y.S. 714; Alden v. Feland, 10 B. Mon. (Ky.) 306: Sutherland v. Commonwealth, 208 Ky. 534: Barett v. Commonwealth, 268 S.W. 1084. The testimony of the officers being merely cumulative to Keeney's testimony, was not prejudicial, even if erroneously admitted. State v. Bruton, 253 Mo. 361; State v. Seward, 247 S.W. 150. Furthermore the defendant voluntarily took the stand and testified that he did have the harness about which the officers had testified, so he could not have been prejudiced by their testimony. State v. McWilliams, 267 Mo. 437; State v. Mitchell, 229 Mo. 683; State v. Burgess, 193 S.W. 821; State v. Gatlin, 170 Mo. 370; State v. Pagels, 92 Mo. 300. (3) The admissibility of testimony as to sales of stolen property subsequent to that charged in the information is not before this court for review, because the defendant let the testimony go in without objection and then moved to strike it out. That was too late to preserve the alleged error. State v. Arnewine, 136 Mo. 134; State v. McAfee, 148 Mo. 379; State v. Pyles, 206 Mo. 632; State v. Harris, 199 Mo. 723; State v. Sykes, 191 Mo. 79-80. The evidence was properly admitted to show a general plan or design. State v. Hyde, 234 Mo. 200; State v. Lewis, 273 Mo. 530; State v. Kolafa, 291 Mo. 340; State v. Carroll Jocoy, 288 Mo. 392; Jeffries v. United States, 103 S.W. 761; State v. Goldsberry, 66 Neb. 320; People v. Weissenberger, 77 N.Y.S. 71; People v. Gotler, 311 Ill. 387; Sykes v. State, 112 Tenn. 572. The defendant himself admitted other purchases from, Luther, so the evidence could not have been prejudicial. (4) The assignment of error in refusing instructions requested by the defendant is not before this court, because the defendant did not except to failure to give the requested instructions. State v. Cantlin, 118 Mo. 100; State v. Jones, 134 Mo. 254; State v. Paxton, 126 Mo. 500. (5) The court's failure to give a cautionary instruction regarding the testimony of witness Luther was not error, because Luther, as the person who stole the property, was not an accomplice of the defendant, who received it. State v. Glazebrook, 242 S.W. 933; State v. Cohen, 254 Mo. 437; State v. Shapiro, 216 Mo. 359; State v. Kuhlman, 152 Mo. 100. Such an instruction relates to a collateral matter and the court's failure to instruct thereon is not error unless a proper request for instruction has been made by the defendant. State v. McNamara, 100 Mo. 107; State v. Lackey, 230 Mo. 718; State v. London, 295 S.W. 547; State v. Garrett, 285 Mo. l.c. 286; State v. English, 308 Mo. 695; State v. Weatherman, 202 Mo. 6. The defendant did not make a proper request for such an instruction. The instruction he did ask for, that "The witness George Luther is an accomplice in this case and his testimony must be corroborated," raises an entirely different point, and is not the law in this State, so was properly refused. State v. Black, 143 Mo. 166; State v. Cummins, 279 Mo. 209; State v. Shaffer, 253 Mo. 336. (6) The court's failure to give a special instruction telling the jury they could consider a witness' previous conviction of crime in determining his credibility, was not error, because the court had clearly told the jury in Instruction 5 that they could consider the character of a witness in determining his credibility. State v. Horn, 115 Mo. 416; State v. Wright, 152 Mo. App. 510. (7) The court plainly told the jury in Instruction 2 that the burden of proof was on the State to prove defendant guilty beyond a reasonable doubt. That is sufficient. It is not necessary to pick out particular facts and require the jury to find each of them beyond a reasonable doubt before they can convict. State v. Wells, 111 Mo. 536; State v. Christian, 66 Mo. 143; State v. Schoenwald, 31 Mo. 155; State v. Garth, 164 Mo. 565; State v. Robinson, 139 S.W. 143; State v. Crawford, 34 Mo. 200; State v. Arnett, 210 S.W. 82. (8) The refusal of defendant's requested instruction as to the consideration to be given the testimony regarding the sale of other stolen property by defendant was not error. Said request was not a correct statement of the law, because it limited the jury to a consideration of sales prior to that charged in the information. The jury were entitled to consider all these sales to determine whether or not there was a conspiracy or common plan to thus handle stolen goods. Such conspiracy, if established, would of course mean that the defendant knew when he received the harness covered by the information, that it was stolen. (9) Instruction 3 stated the law as favorably as possible for defendant and contains no error. (a) The assumption that the Keeney harness was stolen was not error because that fact was not controverted by defendant. State v. Moore, 101 Mo. 316; State v. Zinn, 61 Mo. App. 476; State v. McConnell, 144 S.W. 836; State v. Bobbst, 190 S.W. 257; State v. Carr, 256 S.W. 1043. (b) This instruction does not assume that there were other transactions. It simply refers to and recognizes that there was "testimony of other transactions." Neither does it assume that there were transactions with other parties; again, it merely refers to testimony on that point. (c) There was no error in the failure to define other transactions. The reference clearly was to other transactions about which testimony had been received and the jury were properly permitted to consider all this testimony. (d) This instruction does not assume that these other offenses would show guilty knowledge. It merely limits the jury to consider them as evidence on the question whether defendant had guilty knowledge. (10) The giving of Instruction 1 was not erroneous. (a) The questions of good character, presumption of innocence, credibility of witnesses and reasonable doubt being fully treated in Instructions 2, 4 and 5, it was unnecessary to include them in this instruction. (b) The third paragraph of said instruction is a correct statement of the law. It clearly refers to a mental state of the defendant and does not set up the standard of the reasonably prudent man. State v. Gowdy, 270 S.W. 310. (c) The instructions should be read as a whole. When so read, Paragraph 3 does not assume the property was stolen. Even if it did it would not be reversible error. (d) Since the defendant did not controvert the facts that the harness in question was Keeney's property, that it was feloniously taken from him, and within the period of the Statute of Limitations, the omission to require a finding of such facts was not prejudicial. 17 C.J. 338. (11) The action of the court in limiting the time allowed defendant to make his challenges to the jury was not error. This was a matter properly within the discretion of the trial court who was present and knew how thoroughly the defendant had already examined the prospective jurors. The defendant could not have been prejudiced thereby, because when the court offered to give them more time, counsel stated they could not use it. State v. Lamont, 180 S.W. 861. (12) The admissibility of Mrs. Luther's testimony that defendant had sent her some money is not before this court for review, because no objection was made when it was offered, (13) By failing to ask the trial court to further rebuke counsel after the court's admonitions to the prosecuting attorney, the defendant waived the point. State v. Degonia, 69 Mo. 490; State v. Taylor, 134 Mo. 109; (14) The only requirements necessary to make this verdict good is that it shall find all the essential elements of the offense so that the court can render judgment thereon. State v. Bishop, 231 Mo. 415. The name of the injured party is not an essential element of the offense and need not be stated. In view of court's Instruction 1, which told the jury in unmistakable terms that to find the exact verdict they did render they must find that the Keeney harness was stolen. There is no possibility that the jury based their verdict on the receiving of other harness. State v. Jordan, 225 S.W. 905; State v. Lovitt, 243 Mo. 510; People v. Tierney, 250 Ill. 515; State v. Horan, 61 N.C. 571; State v. Posey, 7 Rich. (S.C.) 484; State v. Tipton, 271 S.W. 55; State v. Knight, 312 Mo. 411; State v. Taylor, 274 S.W. 47.
This case was submitted at the October term and comes to the writer upon reassignment. Appellant was convicted of the felony of receiving stolen property, was sentenced to imprisonment in the penitentiary for a term, of two years, and has appealed.
A brief statement of the facts will suffice. On the night of March 10, 1927, two sets of work harness were stolen from the farm premises of J.R. Keeney, in Jackson County, and early in April following one set thereof was found in appellant's shed in Cass County. The other set was found in the possession of another person to whom appellant admitted he had sold it.
One George Luther testified that he and others stole Keeney's harness and brought the two sets directly to appellant's place and left them there between midnight and daylight. Later the same day they returned and appellant paid them the sum of about $50 for the two sets. Keeney fixed the value of the stolen harness at over $100.
Luther testified that he had an arrangement with appellant whereby he and his associates would steal harness and automobile tires and dispose of them through appellant. He claimed that he had thus stolen, and later disposed of, ten sets of harness and a number of automobile tires.
Appellant admitted that he had purchased six sets of harness and one automobile tire from Luther, but claimed that he paid fair value therefor and had no knowledge that they were stolen; that he paid Luther $22.50 for a set of harness on two occasions before he bought the Keeney set of heavy harness; that he paid $54 for that set of harness; that he later bought three sets of harness from Luther and paid him $15 per set, and that the light set of Keeney harness was one of the three last purchased.
On April 5, 1927, the set of heavy harness, stolen from Keeney on the night of March 10th, was found in appellant's shed after a search of appellant's premises, under authority of a search warrant, the validity of which is challenged. Appellant was away from home when the officers of Jackson and Cass counties arrived. He returned after the harness was found. He denied stealing the harness and stated that he had bought the set from a man he did not know who was driving an automobile along the highway, where appellant was driving some cattle. The State's evidence tended to prove that appellant admitted, after his preliminary hearing, that he did know that man and that it was Luther and that he had lied when he said that he did not know the man. At the trial appellant explained that he knew the man, but meant that he did not know his name.
While appellant established a good reputation, which the State did not deny, and while Luther was shown to be an ex-convict and of bad reputation generally, we have no hesitancy ruling that a case was made for the consideration of the jury. The truth of Luther's testimony was for the jury and from it the jury had the undoubted right to find that appellant was guilty of receiving the two sets of Keeney harness, knowing that they were stolen.
It is contended that the trial court erred in admitting in evidence the testimony of several witnesses concerning the finding in appellant's stable of the set of heavy harness stolen from Keeney. This discovery was made under the purported sanction of a search warrant, the validity of which is assailed by appellant on various grounds. If the search warrant was Search illegal, the search was unauthorized and testimony of Warrant. the officers concerning the discovery of the harness procured thereunder was not properly admitted. [State v. Owens, 302 Mo. 348, 259 S.W. 100.] Let it be assumed, for the purposes of this opinion only, that the search warrant was invalid and that the testimony should have been excluded when offered. It does not follow, however, that the judgment must be reversed on that account. We think the error, if it was error, was cured by the subsequent conduct and admissions of appellant.
The effect of the evidence challenged was to prove that appellant had possession of the harness stolen from Keeney. Appellant testified to such possession himself and sought to show that such possession was without knowledge on his part that the harness was stolen. In 38 Cyc. 1432, the general rule is laid down as follows: "Error in the admission of evidence offered by one party is cured where practically the same evidence is afterward introduced by the adverse party, or elicited on cross-examination." In State v. Seward (Mo. Sup.), 247 S.W. 150, l.c. 152 and 153, REEVES, C., said: "Such statement was not a part of the res gestae, but a narrative of a past event, and therefore incompetent. . . . [Citing cases.] The error, however, was entirely cured, as appellant's counsel not only developed the same facts on the cross-examination of Wagner, but thereafter made inquiries touching the same matter of other witnesses, and developed the same facts." See also State v. Burgess (Mo. Sup.), 193 S.W. 821, l.c. 824 [8, 9]; State v. Moore, 156 Mo. 204, l.c. 212, 56 S.W. 883.
Another assignment of error is that the trial court gave appellant insufficient time to challenge the jury. The record shows that, when counsel returned appellants's list of challenges, the court offered to allow more time if Jury: it was required and counsel then stated he could not Time to then use more time. There is clearly no merit in the Challenge. contention, even if the record justified the complaint, because the allowance of time to make challenges to the jury, in cases where the statute specifies no time, is necessarily within the discretion of the trial court, the exercise of which cannot be disturbed in the absence of proof of abuse of such discretion.
Error is assigned because the court failed to give proper instructions at the request of appellant on the following subjects: reasonable doubt, presumption of innocence and burden of proof. These subjects were covered in the usual Refusal of and often approved manner in Instruction 2, given Instructions. by the court, and this contention is overruled.
Complaint is also made that the court failed or refused to instruct the jury upon the effect upon the credibility of a witness of his previous conviction of crime; that Luther was an accomplice and was required to be corroborated. Counsel for appellant made a number of requests for instructions Collateral on these and other objections which were mere Issues. collateral matters. They were subjects upon which the court was not required to instruct, whether so requested or not. [Sec. 4025, R.S. 1919.] The record fails to disclose that counsel for appellant prepared and submitted to the court any instructions on these subjects. The court was not required to prepare them for appellant upon mere request. [State v. Simon (Mo. Sup.), 295 S.W. 1076; State v. Starr, 244 Mo. 161, 148 S.W. 862, and cases cited.]
Besides, an instruction on the testimony of an accomplice was not proper in this case. Appellant was tried for and convicted of the crime of receiving stolen property and not for Accomplice. larceny. Luther was the thief and appellant the receiver of the fruits of his theft, according to the State's evidence. The thief and the receiver of the property stolen are not accomplices in the crime of receiving stolen property, knowing it to be stolen. [State v. Cohen, 254 Mo. 437, l.c. 451, 162 S.W. 216; State v. Shapiro, 216 Mo. 359, l.c. 371, 115 S.W. 1022; State v. Kuhlman, 152 Mo. 100, l.c. 103, 53 S.W. 416.]
Appellant complains of the admission of evidence tending to prove that he received from Luther stolen harness and automobile tires, other than the Keeney harness charged in the Other information. He particularly complains of evidence Crimes. regarding transactions of that character subsequent to the time appellant came into possession of the Keeney harness. Like complaint is made of the refusal of the court to instruct the jury to disregard such subsequent transactions. In 34 Cyc. 525 (IV), the general rule is thus stated:
"Evidence of the receipt of other stolen goods by defendant at a time not remote from, and under circumstances connected with, the receipt in question is admissible to show guilty knowledge; and generally it must be shown that the goods were received from the same person. According to the better rule, it is not necessary to show that the goods were stolen from the same person, since that is not essential in order to show that defendant had notice of the character of the goods; but it must appear that they were received with knowledge that they were stolen, since the only ground on which this evidence is admissible is to show that defendant had been put on his guard as to the questionable nature of his dealings."
See also 17 Ruling Case Law, page 88, section 94. Such is the rule in Missouri. [State v. Cohen, supra, l.c. 455; State v. Smith, 250 Mo. 350, l.c. 368, 157 S.W. 319.]
The evidence complained of was properly admitted. This being true, it follows that the court did not err in instructing the jury that it had the right to consider such testimony on the question of appellant's guilty knowledge. The jury could not be limited to transactions before the reception by appellant of the Keeney harness, if all such transactions occurred about the same time and under the same general arrangement, as the State's evidence tended to prove.
Appellant assails Instruction 1. It is criticized because it did not require the jury to consider the good character of appellant or the presumption of his innocence and because it did not advise the jury as to the burden of proof. It Instruction: required the State to prove and the jury to find All Relevant the facts constituting the crime charged against Matters. appellant "beyond a reasonable doubt." The other matters complained of were sufficiently and properly covered in separate instructions.
Said Instruction 1 is also criticized because it authorized conviction of appellant for receiving two sets of Keeney harness, while the appellant's evidence tended to prove that the sets were received at different times. The State had the right to have instructions based on Luther's testimony that the two sets Two were delivered to appellant at the same time. Appellant Acts. asked no instruction on any different theory. The proof tends to show that each set was worth $30 or more. However, the said instruction authorized conviction of appellant for a misdemeanor, if the property received by appellant was of a value less than $30.
Said Instruction 1 is also said to be erroneous because it did not require the jury to find that appellant knew the harness he received was stolen, but required it to find "only facts such as to cause him to know" that it was stolen. On this Guilty issue the instruction required the jury to find "that Knowledge. the facts and circumstances known to and by the defendant in connection with either buying or receiving it, if he did so buy or receive, were such as to cause him to know the said property was stolen."
This instruction does not permit the jury to find guilty knowledge on appellant's part, if an ordinarily prudent man would have known the harness was stolen if it had been offered to him under like or similar circumstances, but required the jury to find that appellant actually was caused to know such fact from all the circumstances known to him at the time. It is not subject to the criticism made. [State v. Gowdy, 307 Mo. 352, l.c. 363, 270 S.W. 310.]
Instruction 1 is further criticized because it did not define the offense of larceny or require the jury to find that the property was feloniously taken and was the property Omissions. of Keeney and that said property was taken within the period of the Statute of Limitation. The instruction is far from a model in the respects mentioned, but it did require the jury to find that the harness was stolen from Keeney. The information was filed June 4, 1927. The case was tried September 21 and 22, 1927, and the evidence showed that the larceny and subsequent reception of the harness were in March, 1927. No issue was made under the evidence that the crime was not committed on or about the time charged in the information and shown by the State's evidence. Appellant was not prejudiced by the omission to submit such issues and such failure to submit them does not constitute reversible error. [17 C.J. 338, sec. 3686.]
Instruction 2 on the presumption of innocence and reasonable doubt is assailed because it does not authorize consideration, in connection with the evidence in the case, of the presumption Presumption of innocence. There is no merit in the contention. of Innocence. The instruction was in the usual and repeatedly approved form.
Instruction 3 was as follows:
"The court instructs the jury that testimony of other transactions besides the Keeney harness between defendant and witness Luther or other parties is admitted for the sole purpose of showing whether defendant knew the Keeney harness was stolen."
Said instruction is the target for eight assignments of error in appellant's brief, each of which is utterly devoid of substantial merit. There is no evidence of any transactions between Luther and appellant other than the reception Assuming by appellant from Luther of property stolen by Luther Fact. and the instruction was not misleading on that account. In terms it may have assumed that the Keeney harness was stolen; but in Instruction 1, the jury was required to find that the harness was stolen from Keeney and it was unnecessary to repeat the requirement in every instruction. All of the instructions must be read together. Besides, there is no conflict in the evidence as to the actual character of the harness received by appellant. The only issue was the question of appellant's knowledge of its character in that regard. Other criticisms made of Instruction 3, either have already been considered in connection with Instructions 1 and 2, or they are too trivial to deserve consideration.
Instruction 4 covered the subject of the good character of appellant. It need not be set out, as it meets the requirements laid down in decisions of this court for a hundred years. The objection to it has already been held to be without Good merit in connection with our consideration of the Character. other instructions.
Error is predicated upon the failure of the court to instruct the jury that the naked possession of the harness by appellant raised no presumption that appellant knew it was stolen. Appellant failed to prepare and submit such an Presumption instruction. The subject of the instruction of Knowledge. complained of would have been a collateral matter and no error was committed by the failure of the court itself to prepare and give one for appellant. [State v. Simon, supra.]
Appellant complains of error in the admission of proof of the finding of an automobile tire hidden in his barn loft upon an alleged second search of his premises. He has failed to point out the place in the record where the point was raised Pointing Out below. We fail to recall the incident after a Challenged careful reading of the record and must decline to Rulings. re-read the voluminous record for the purpose of hunting it out for ourselves. It is the duty of counsel to indicate where challenged rulings appear in the record. Besides, appellant admitted the purchase of one automobile tire from Luther.
Complaint is made of the admission of testimony that harness found in appellant's possession had been identified as the harness stolen from Keeney, because such testimony was hearsay and not direct testimony of such fact. Counsel has failed to point out where such ruling occurred or even to indicate what witness was on the stand at the time. Again we must decline to search the entire record to see if there is merit in the assignment. Even if such testimony was improperly admitted, appellant was not prejudiced thereby. The only defense made was want of knowledge that the harness was stolen and not as to its identity. Other complaints as to improper reception of testimony cannot be noticed because the ruling in the record is not pointed out in appellant's brief.
Appellant contends that the trial court erred in permitting the prosecuting attorney in his closing argument to tell the jury that the possession of property recently stolen raises the presumption that the possessor is the thief. We have Argument carefully examined the record covering the matter. to Jury.
The court told the jury that "there is no such presumption in law," and thereby sustained the contention of appellant. In saying "whether there is any such presumption, little or much, as a matter of argument is for the jury to pass upon." The court evidently meant inference of fact, instead of "presumption." The trial judge had just correctly ruled that the possession of stolen property raised no presumption of law that the possessor was a thief. [State v. Swarens, 294 Mo. 139, 241 S.W. 934.] The jury could not have misunderstood the court's ruling, even though the language of the ruling was ambiguous. No objection was made on the ground that the jury could not infer that one in possession of stolen property soon after its theft was a receiver of said property knowing it was stolen. There was no substantial merit in the assignment.
Appellant also complains of the following ruling of the court during the prosecuting attorney's closing argument:
"The defendant objects and excepts to the argument of the prosecuting attorney in the closing argument, `His family ought to have been looking out for him long ago,' because it has a prejudicial and inflammatory influence on the jury. There are no facts and circumstances in evidence to warrant the statement at all and I ask the court to instruct the jury to disregard it and instruct counsel to confine himself to remarks that are in the record; further because it is unverified in the case and the facts and circumstances in the evidence do not warrant it.
"THE COURT: The court will simply direct the counsel to keep within the evidence."
The portion of the argument quoted suggests that it was made in response to some appeal to the jury for sympathy for appellant on account of his family. Appellant's argument does not appear. The trial judge heard it all and saw fit to do nothing more than to admonish the prosecuting attorney to keep within the evidence. We are unable to see how appellant could have been improperly prejudiced by the argument made.
The last assignment, which we deem it necessary to notice, is that the verdict was special in form and did not make a finding upon all issues in the case. It was as follows: "We, the jury, find the defendant guilty of receiving stolen property worth over thirty dollars, knowing it was stolen, and assess his Verdict. punishment at imprisonment in the penitentiary for two years." Appellant argues that the verdict in this form is insufficient to support the judgment because the jury did not find that appellant received property stolen from Keeney.
Section 3331, Revised Statutes 1919, provides that "every person who shall buy, or in any way receive, any goods . . . that shall have been stolen from another, knowing the same to have been so . . . stolen, shall, upon conviction, be punished," etc.
While the statute uses the term "stolen from another," the word "stolen" embodies the whole idea contained in such term. A person cannot steal anything except from another. The identity of the owner of the stolen goods is not within the reasonable intendment of the statute as an essential element of the crime of receiving stolen goods. Such essential elements are a previous larceny of the goods, reception thereof by the accused and knowledge on his part of their stolen character at the time he received them. The element of value is also important, but only in classifying the offense as a felony or as a misdemeanor. We think the verdict made a sufficient finding upon each of the foregoing essential elements of the crime.
In State v. Jordan, 285 Mo. 62, 225 S.W. 905, WALKER, J., said:
"It is a wholesome precept that verdicts should be given a reasonable intendment and a like construction; and are not to be avoided unless it is evident they will work manifest injustice. [State v. Grossman, 214 Mo. 233; Welch v. State, 50 Ga. 128; Arnold v. State, 51 Ga. 144.]"
By Instruction 1 the court told the jury that if it found "that the harness described in the information was stolen from J.R. Keeney;" that appellant bought or received the harness in Cass County, Missouri, and knew the harness was stolen and was worth over thirty dollars "then you will find him guilty of receiving stolen property worth over thirty dollars, knowing it was stolen," etc. The words we have italicized were copied bodily into the verdict and clearly indicate that in rendering such verdict the jury found that appellant received the property stolen from Keeney. Appellant's challenge of the legal sufficiency of the verdict must be overruled.
We have carefully gone over the voluminous record and are unable to find that any reversible error was committed against appellant. The jury was authorized to accept the testimony of the thief, Luther, and having accepted it as true, the verdict of guilty was fully warranted and should not be disturbed.
The judgment is affirmed. All concur.