Opinion
February 21, 1940.
1. BURGLARY: Submissible Case. Where the evidence showed that defendant, charged with burglary and larceny, told two others to break into a warehouse and get tires for him, furnished the two with gas and a car so that the tires could be taken to defendant's place, that the two broke in, failed to get the tires but took inner-tubes and other property which they delivered to defendant who paid them for their work, the evidence warranted the conviction of burglary, in the second degree.
2. BURGLARY: Information. Where an information charging burglary and larceny failed to allege whether the owner of the property taken was a corporation or a partnership, the error may be disregarded, since the defendant was convicted only of burglary, and the larceny charge was not submitted.
3. INFORMATION: Burglary. Where an information charging that defendant broke into a warehouse, the property of a named corporation, in which its goods, wares and merchandise were stored, it was sufficient to charge burglary in the second degree.
4. INFORMATION: Variance: Burglary. Where an information charging burglary averred that the warehouse burglarized was the property of Phillips 66 Oil Company, and the evidence showed that the true name of the corporation was the "Phillips Petroleum Company," and where all of the witnesses referred to the warehouse as "Phillips 66 Warehouse," and defendant and his attorney referred to it by that name, there was no fatal variance between the charge and the proof, since the corporation was commonly known by that name.
The information was sufficiently certain that a judgment thereon could be sufficiently pleaded as a bar to any further prosecution for the same offense.
5. INFORMATION: Amendment. An information charging burglary was properly amended by interlining the words "a corp." after the name of the company whose property was alleged to be burglarized.
An information may be amended by leave of the court, prior to the trial, in a matter of form or substance.
6. CRIMINAL LAW: Trials: Impeaching Defendant. Where the defendant charged with burglary testified, there was no error in permitting the State to impeach him for truth and veracity.
7. TRIALS: Witnesses: Failure to Call Co-Defendant. On the trial of defendant charged with burglary where the evidence showed that he had two accomplices and where the prosecutor in his argument referred to the failure of the defendant to call his co-defendant as a witness, the court did not err in refusing to reprimand the prosecutor.
A co-indictee may testify for the defendant and the failure of such co-indictee to testify is a legitimate matter for comment by the prosecuting attorney.
8. TRIALS: Newly Discovered Evidence. The failure of the trial court to grant a new trial on the ground of newly discovered evidence was not error where the evidence did not come into existence until after the trial.
9. CRIMINAL LAW: Excessive Punishment. On the trial of defendant for burglary in the second degree a sentence to imprisonment in the penitentiary for nine years was not excessive.
That defendant's accomplices, on pleas of guilty, received a less punishment did not entitle defendant to a new trial.
Appeal from Butler Circuit Court. — Hon. Robert I. Cope, Judge.
AFFIRMED.
W.L. Proffer for appellant.
(1) The defendant's demurrer at the close of all the evidence should have been sustained, First, because there was a total failure of proof of an independent source, material to the issue, which of itself and without the aid from the accomplice's testimony, that tended to connect the defendant with the crime charged; Second, there was a failure of proof in this, that the Information charged that the Warehouse belonged to "the Phillips 66 Oil Company, a Corp.", and that the goods stolen belonged to "the Phillips 66 Oil Company," without showing whether it was a partnership or a corporation; and, the proof showed that the warehouse and the property stolen both were the property of the "Phillips Petroleum Company", a Corporation. The exact testimony by the State's own witness, Tony Saracini, is as follows, quote: Page 40 of Trans. by Mr. Bloodworth: "Q. What is your-occupation? A. I'm agent for the Phillips Petroleum Company. "Q. Is that — that is a corporation, is it? A. Yes, sir. Q. Where is your warehouse located? A. Our warehouse is right south of town on the ditch road. Q. That's — then that's the warehouse that was broken into? A. Yes, sir." All of which shows a total failure of proof and amply sufficient to warrant the trial court in sustaining defendant's demurrer. State v. West, 24 S.W.2d 1006; State v. Corp., 22 S.W.2d 776; State v. Donnelli, 22 S.W.2d 781; State v. Vinson, 22 S.W.2d 779; State v. Huff, 296 S.W. 121; State v. Parks, 13 S.W.2d 1107; State v. Varnell, 289 S.W. 845; State v. Nelson, 21 S.W.2d 190; State v. Stewart, 289 S.W. 943; State v. Keltner, 278 S.W. 825; State v. Blocker, 274 S.W. 1097; State v. Dildine, 269 S.W. 653; State v. Ferrell, 248 S.W. 979; State v. Lane, 221 Mo. App. 148; 1 Cyc. of Evi., p. 104. (2) Appellant complains that the trial court committed error in permiting the State to offer proof as to the defendant's reputation for "truth and veracity" over the objection and exception of defendant, when that particular trait of defendant's character had not previously been put in issue by the defendant, because under the established rule the proof must be confined to the particular trait of character of defendant involved in the crime charged, and to the trait of character put in issue by defendant. State v. Eddington, 286 S.W. 144; State v. Thomas, 78 Mo. 343; State v. Cooper, 71 Mo. 436; 1 Greenleaf Evi., sec. 469; 1 Wharton Evi., sec. 569; 3 Cyc. of Evi., p. 12; State v. Grant, 79 Mo. 133. (3) Complaint is made of the trial court's refusal of defendant's motion to instruct the jury on the issue of petit larceny. It is the duty of the trial court to instruct the jury on all the law involved in the case on trial and supported by any evidence. The proof in this case on the value of the property stolen was very vague and indefinite, and if the jury was warranted under the evidence as to the description of the property taken that it was of less value than alleged then the jury should have been guided by an instruction on petit larceny. State v. Conway, 241 Mo. 290; State v. Nichols, 222 Mo. 434; State v. Lackey, 230 Mo. 707; State v. Hoag, 232 Mo. 308; State v. Harris, 232 Mo. 317. (4) It is charged that the complaint filed before the justice of the peace was defective and insufficient because it did not name the true owner of the building burglarized, nor the true owner of the property stolen. That the information filed and upon which defendant was placed upon trial was likewise fatally defective, not only because it did not correctly name the true owner of either the building or the property, but, further alleged the ownership to be in an unknown and a nonexistant company, which is a total failure to name any ownership, and this being a case of proving the crime of burglary and larceny, a failure to name the true owner of both the place burglarized and the property taken is fatal to the information and it will not support the conviction and judgment for either offense. State v. Henschel, 250 Mo. 263, 157 S.W. 311; State v. English, 67 Mo. 136; State v. Fay, 65 Mo. 490; State v. Jones, 168 Mo. 498; Sec. 3554, R.S. 1929; State v. Wall, 39 Mo. 532; State v. Clark, 223 Mo. 48. (5) Appellant complains of the error of the trial court in permitting the prosecuting attorney, successor to the former who made the original information, to amend the information at the time the case was called for trial; First, because the amended information was not sworn to, and because after the amendment it was not supported by the complaint which was filed before the justice of the peace; and, Second, because the amendment was only as to the ownership of the building burglarized, and did not amend the defect as to the ownership of the property stolen; and, Third, because the original information and the complaint did not allege any ownership, but, named an unknown and nonexisting company so there was nothing to amend; and, Fourth, that the purported amendment was as to the "Substance" and not as to the "Form" of the Information, which is not permissible under the law; and, Fifth, because the amended information was not sworn to, and was not supported, as amended, by the complaint. State v. Smith, 264 S.W. 52; State v. Fox, 300 S.W. 820; State v. Horn, 93 Mo. 190; Sec. 3554, R.S. 1929; State v. Clark, 223 Mo. 48, 122 S.W. 665; State v. Roswell, 153 Mo. App. 338, 133 S.W. 99; State v. Jenkins, 92 Mo. App. 439; State v. Walton, 255 Mo. 232, 164 S.W. 211. (6) The information wholly failed to allege the necessary facts to constitute the crime of burglary and larceny. It was error to permit the State to proceed to trial, and the fatally defective information will not support the conviction and judgment. (7) Appellant complains of the variance between the allegations of the information and the proof offered by the State. It was not only necessary to allege the true ownership of the building burglarized and also the property taken, but that the proof must sustain the allegations. In this case, the State alleged ownership of both the building and the property to be in the "Phillips 66 Oil Company," a company not in existence, when the proof showed both the building and the property belonged to the "Phillips Petroleum Company." This was a fatal variance and will not support a conviction for the offense charged. State v. English, 67 Mo. 136; State v. Chamberlain, 75 Mo. 382; State v. Fay, 65 Mo. 490; State v. Smith, 31 Mo. 120; State v. Griffie, 118 Mo. 188, 230 Mo. 680; State v. Mohr, 55 Mo. App. 325; State v. Reynolds, 106 Mo. 146; State v. Horn 93 Mo. 190; State v. Sherrill, 278 S.W. 992, 277 Mo. 228.
Roy McKittrick, Attorney General, Wm. Orr Sawyers and Lawrence L. Bradley, Assistant Attorneys General, for respondent.
(1) The court did not err in permitting witness Woods, to testify as to appellant's reputation for truth and veracity. State v. Scott, 332 Mo. 255, 58 S.W.2d 275; State v. Ross, 306 Mo. 499, 267 S.W. 853. (2) The court did not err in overruling appellant's demurrer at the close of the whole case. State v. Parker, 324 Mo. 734, 24 S.W.2d 1023; State v. Braden, 295 S.W. 784; State v. Erlbacher, 270 S.W. 277. (3) The court did not err in refusing to instruct the jury on petit larceny. State v. Enochs, 339 Mo. 953, 98 S.W.2d 685. (4) The information is in proper form and is sufficient. State v. Carson, 323 Mo. 46, 18 S.W.2d 457; State v. Latham, 124 S.W.2d 1089; State v. Lackey, 230 Mo. 707; State v. Kaplan, 16 S.W.2d 35; State v. Cain, 31 S.W.2d 559; State v. Brown, 181 Mo. 233. (5) There is no fatal variance between the charge and the proof. State v. Harl, 137 Mo. 252; State v. Nelson, 101 Mo. 477; State v. Lackey, 230 Mo. 707; State v. Fike, 324 Mo. 801, 24 S.W.2d 1027. (6) The court did not err in permitting the prosecuting attorney to amend the information. (7) The court did not err in giving Instruction 2. State v. Busch, 119 S.W.2d 265. (8) The argument of the prosecuting attorney is proper. State v. Watson, 1 S.W.2d 837; State v. Mathews, 98 Mo. 125; State v. Linders, 229 Mo. 671, 253 S.W. 716. (9) The court did not err in failing to grant a new trial on the evidence taken in support of said motion tending to impeach the witness Paul Patterson and Green, and tending to show that their testimony was prejudiced. State v. Vinson, 107 S.W.2d 16; Gavin v. Forrest, 230 Mo. App. 662, 72 S.W.2d 177; Neal v. K.C. Rys. Co., 229 S.W. 215.
Appellant, Quinn, was tried in the Circuit Court of Butler County, Missouri, on a charge of burglary and larceny. He was convicted of burglary in the second degree and sentenced to imprisonment in the State penitentiary for a term of nine years. An appeal was taken to this court.
Appellant did not contend that the evidence was insufficient to sustain a conviction, except in one particular which will be noted later in the opinion. A brief statement of the facts will therefore suffice. Two witnesses, named Green and Patterson, testified that appellant informed them that he needed some tires; that he had noticed tires in the Phillips 66 Warehouse; that appellant advised them to break into the warehouse and get the tires for him; that appellant furnished them, the witnesses, with gas and a car so that the tires could be taken to appellant's place, a short distance from Poplar Bluff. Green and Patterson further testified that they went to the warehouse that night, being in May, 1937, and forced their way into the building. They testified that the tires were locked on a chain, which made it impossible for them to steal the tires, so they took other property, such as inner-tubes, grease and oil, valued at about $80. The stolen property was taken to the place as directed by appellant and a few days later appellant paid the witnesses for their trouble. A Mr. Silsby, operator of a filling station in an adjoining county, testified that he purchased some inner-tubes from appellant similar to those taken from the warehouse by Green and Patterson. It will be noted the evidence showed that Green and Patterson were instructed by appellant to steal tires. That, under the evidence, was the intent and purpose of breaking into the warehouse. The trial court did not submit the charge of larceny to the jury. The evidence fully justified a conviction of burglary.
Appellant challenged the sufficiency of the information on the ground that it did not allege the ownership of the property taken. The information charged that the warehouse broken into was "The property of a Phillips 66 Oil Company, a Corp.;" that the property stolen was "the personal property of said Phillips 66 Oil Company, then and there in said warehouse being found." Appellant briefed the point that the information as to the larceny failed to allege whether the Phillips 66 Oil Company was a corporation or a partnership. We may disregard this assignment of error because the larceny charge was not submitted to the jury and appellant was found guilty only of burglary. [3] The information charged in substance that the warehouse burglarized was the property of Phillips 66 Oil Company, a Corp., in which goods, wares, and merchandise were stored, kept and deposited; in said building. That, under our statute, Section 4048, Revised Statutes 1929 (Mo. Stat. Ann., p. 2849), was sufficient to charge burglary in the second degree. [State v. Arthur, 57 S.W.2d 1061, l.c. 1062 (5); State v. Duncan, 336 Mo. 600, 80 S.W.2d 147, l.c. 151 (8-10).]
Appellant, however, insists that there was a fatal variance between the charge and the proof, since the evidence disclosed that the true name of the corporation was "Phillips Petroleum Company;" that therefore the evidence did not support the charge. All of the witnesses in the case referred to the warehouse as "Phillips 66 Warehouse," or "Phillips 66 Oil Company Warehouse," except the agent of the company when he was specifically asked to state the true name of the corporation. The location of the warehouse was agreed by all to have been a short distance south of Poplar Bluff on the ditch road. Appellant and his attorney also referred to the Company as "Phillips 66" and also used the term "Phillips 66 Warehouse." Note the following:
"Did you ever buy any gasoline, or furnish any automobile for them to use in the burglarizing of the Phillips 66 Warehouse? A. No, sir, I never did."
So it may be safely stated that the error appearing in the information, regarding the name of the owner of the building burglarized, did not mislead appellant or prejudice his rights. Not only did the State refer to the corporation as "Phillips 66 Oil Company," or "Phillips 66," but the defendant and his attorney referred to the company in the same manner. From the evidence we infer that the company was commonly known by that name. Upon this subject this court in State v. Carson, 323 Mo. 46, 18 S.W.2d 457, l.c. 461, said:
"It has not been pointed out how it could affect his substantial rights. There is no possible fact which he might prove in support of his plea of not guilty, or in rebutting proof of the charge in the information as filed, that he might have proved if the allegation of incorporation had been made."
The information was sufficiently certain that a judgment thereon could be successfully pleaded as a bar to any further prosecution for the same offense. [State v. Broyles, 317 Mo. 276, 295 S.W. 554, l.c. 556 (5); State v. Duncan, 336 Mo. 600, 80 S.W.2d 147, l.c. 151 (7).] Appellant cited in support of his contention, State v. Henschel, 250 Mo. 263, l.c. 270, 157 S.W. 311; State v. Jones, 168 Mo. 398, l.c. 403, 68 S.W. 566, and similar cases. But those cases were expressly overruled in State v. Carson, 323 Mo. 46, 18 S.W.2d 457, l.c. 460 (2). The rule in the Carson case has since been followed in other cases. [See State v. Latham, 344 Mo. 74, 124 S.W.2d 1089.] See also an earlier case, State v. Nelson, 101 Mo. 477, 482, 14 S.W. 718, l.c. 719, 10 L.R.A. 39, where this court said:
"The merits of the case in no wise depended upon the question whether the husband or the wife was the owner of the house burglarized.
That case was approved in State v. Lackey, 230 Mo. 707, 132 S.W. 602, l.c. 605. The identity of the building burglarized must of course be made certain. That, however, was done in the case before us. The corporation was commonly known by the name used in the information. We therefore rule the point against appellant and this disposes of a number of other points briefed which were based upon the mistake in the name of the corporation.
Prior to the trial of the case the prosecuting attorney asked leave of court to amend the information by interlining the words "a corp." after the words "Phillips 66 Oil Company." Appellant asserted this was error. Under the authority of State v. Carson and State v. Latham, supra, the amendment was not material. However, an information may be amended with leave of court, prior to the trial, in matter of form or substance. [See Sec. 3508, R.S. 1929, Mo. Stat. Ann., p. 3131; State v. Tippett, 317 Mo. 319, 296 S.W. 132.] The fact that the amendment was made by a prosecuting attorney who was a successor to the prosecuting attorney who had filed the information is not material.
Appellant assigned error because the trial court permitted the State to introduce evidence which tended to impeach him for truth and veracity. There is no merit in this assignment since appellant testified in the case and was therefore subject to impeachment the same as any other witness. [State v. Scott, 332 Mo. 255, 58 S.W.2d 275.] We may note that the impeachment was limited to truth and veracity and did not include defendant's reputation for morality. [See State v. Williams, 337 Mo. 884, 87 S.W.2d 175, l.c. 180 (9).]
The record shows that during the argument made by the prosecuting attorney to the jury the attorney for the defendant objected to a statement made, that the defendant failed to call a co-defendant as a witness. The court was asked to reprimand the counsel. The court replied:
"THE COURT: Gentlemen of the Jury, your verdict will be made up from the testimony you heard and not from what you didn't hear. If any is left out — you will not consider anything that is left out."
Appellant excepted to the failure of the court to reprimand the attorney. From the record we learn that the co-defendant referred to was sworn as a witness at appellant's request but was not called to testify. In a case cited by appellant, State v. Greer, 321 Mo. 589, 12 S.W.2d 87, l.c. 89 (2), this court ruled such an argument proper. It was there held that a co-indictee may testify for the defendant on trial and that the failure of such co-indictee to testify was as legitimate matter for comment by the prosecuting attorney. [See also State v. Emory, 79 Mo. 461, l.c. 463.]
Appellant in his brief urges that the trial court erred in not granting him a new trial on the ground of newly discovered evidence. This evidence in fact did not come into existence until after the trial. Two of the State's witnesses were held in jail at the time of the trial. One was serving time at the jail and the other had been brought from the penitentiary for the purpose of testifying. Appellant offered a number of witnesses, who were confined to jail at that time, who testified that after the State's witnesses learned of appellant's conviction they stated that they had committed perjury. The State rebutted this by evidence of the sheriff and his deputy. This made it a question of fact and the trial court evidently did not believe appellant's witnesses. After reading the record we reached the same conclusion.
It is claimed that the punishment assessed was so excessive as to show bias and prejudice on the part of the jury. The punishment was within the limits prescribed by statute. It is argued that appellant's accomplices, on pleas of guilty, received a much less punishment. That of itself did not entitle appellant to a new trial. The jury may have been of the opinion, and rightly so, that a man who instigates others to steal and reaps the benefit thereof, while the hirelings are paid a small sum, deserves a greater punishment than the hirelings. Finding no reversible error in the record the judgment is affirmed. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.