Opinion
February 19, 1930.
1. CHANGE OF VENUE: Insufficient Affidavits. Five affidavits, in almost exactly the same form, stating that the defendant cannot have a fair and impartial trial in the county because of the bias and prejudice in the minds of the inhabitants, stating no facts and nothing to show that the affiants reside in different parts of the county, are in effect the same as a joint affidavit, and will not authorize a change of venue, under Section 3973, Laws 1921, page 206.
2. ____: Oral Proof: Notice. Unless reasonable notice has been given the prosecuting attorney that defendant intends to base his right to a change of venue on two affidavits and oral proof by witnesses that he cannot have a fair and impartial trial in the county, the application should be denied.
3. OPENING STATEMENT: Remarks Relating to Kindred Crime. A remark by the prosecuting attorney in his opening statement to the jury in the trial of a defendant charged with the burglary and larceny of sugar, that the police made a raid upon a certain place and "found a quantity of mash," was not prejudicial error if the court promptly sustained an objection thereto and instructed the jury not to consider it, no request for a reprimand having been made.
4. ____: Remarks Relating to Defendant's Possession. In the trial of a defendant charged with burglary and the larceny of a great amount of sugar, a remark by the prosecuting attorney in his opening statement that 2500 pounds of sugar were found at a named place and that the place was in possession of defendant, is not objectionable, if the remark is seemingly made in good faith in the expectation of proving it at the trial, and the proof shows that defendant took possession of the 2500 pounds.
5. INDICTMENT: Burglary: Description of Place. An indictment charging that defendant burglarized a building known as the Kroger Grocery Baking Company store in a certain county is sufficiently definite in locating the place, where there is nothing to indicate that there was more than one such Kroger store in the county.
6. ____: ____: Accessory Before Fact. The indictment is not defective in charging defendant as principal, rather than as accessory before the fact, where the proof shows that he did not break into the store, but that he was accessory before the fact, in that he hired other men to break into the store and steal the goods. By statute (Sec. 3687, R.S. 1919) an accessory before the fact may be charged, tried, convicted and punished as a principal.
7. LARCENY: Evidence: Connected Facts. In the trial of a defendant charged with burglary and larceny of sacks of sugar from a store, it is proper to permit the State to interrogate its witnesses about the removal of the license plate from the stolen truck in which the sugar was hauled, and about whatever else was done in the perpetration of the larceny.
8. WITNESSES: Codefendants. Witnesses, separately indicted, but for the same crime, are not codefendants, and are competent.
9. BURGLARY AND LARCENY: From Corporation: Oral Proof. That the owner of the store burglarized was a corporation may be shown by oral evidence, where there is no objection to the character of proof. Besides, it is not necessary to show that the owner of the goods stolen when the store was burglarized was a corporation.
10. LARCENY: Sufficient Proof. Evidence that defendant employed two men to procure the stolen sugar, told them where to get it, advised them about the method of getting it, and that they took it in the county, hauled it to him according to his instructions to them, and that he received it, is sufficient to make out a case of larceny against him.
11. NEW TRIAL: Newly Discovered Evidence. The motion for a new trial does not prove itself. A motion which sets out facts which it asserts the newly-discovered witnesses will swear to, is not a ground for a new trial, in the absence of proof that such witnesses will swear to the facts so stated.
12. ____: ____: Diligence. The motion for a new trial based on newly-discovered evidence, and the affidavit in support thereof, must show that defendant exercised diligence to find out what the witness would swear to, and he shows no diligence in failing to ascertain what a witness would swear to whose name had been indorsed on the indictment two months before the trial.
13. INSTRUCTIONS: All Law of Case. Unless appellant points out some particular instruction which the court should have given but failed to give, it cannot be ruled that the court failed to instruct on all the law of the case, and particularly so where an examination of the instructions reveals no lack of sufficient instructions on every point involved in the case.
Appeal from Ralls Circuit Court. — Hon. Vernon L. Drain, Special Judge.
AFFIRMED.
Roy Hamlin and B.B. Megown for appellant.
(1) A change of venue should have been granted defendant. The trial court was in error, when he refused to permit defendant the right to use oral proof to show that the parties making the supporting affidavits lived in different neighborhoods. When five or more affidavits, duly verified, by parties from five, or more different and distinct neighborhoods of the county are filed, then and in that event, a change of venue shall be granted. Said procedure is to eliminate oral proof, which is to save time for the court and expense for the litigant, but it does not nullify the law of oral proof, whereby the defendant can show the prejudice of the inhabitants. State v. Goddard, 146 Mo. 183; State v. Hudspeth, 150 Mo. 22; Laws 1921, p. 206. The Act of 1921 does not repeal Sec. 3973, R.S. 1919, but only adds an amendment thereto, and this court has uniformly held that evidence should be heard. State v. Bradford, 314 Mo. 697; State v. Dyer, 139 Mo. 208; State v. Ross, 178 S.W. 477; State v. Swisher, 186 Mo. 119. (2) The indictment did not describe the premises or the ownership of the house in which the offense had been committed. The Kroger Grocery Baking Company may have several stores in the same town or county. In fact, it is common knowledge that the Kroger Grocery Baking Company is a chain store organization, having one or more stores in the same town or county. The defendant should be fully advised by the indictment just what he will be compelled to answer, and not be required to go out of or beyond the indictment to learn the exact nature of the charge, he must meet. State v. Murphey, 164 Mo. App. 204; State v. Hammons, 226 Mo. 604; State v. Logan, 209 Mo. 401. (3) The court erred in not sustaining the demurrer of the defense because there was no evidence to sustain the information, but thereafter of its own motion took the charge of burglary away from the jury and submitted the charge of grand larceny. Both were jointly charged: if not guilty of the burglary defendant could not have been guilty of grand larceny. The evidence had already been introduced poisoning the minds of the jury against this defendant. State v. Minor, 193 Mo. 597. (4) In a criminal prosecution, it is the duty of the court to give all necessary instructions whether they are requested or not. Sec. 4025, R.S. 1919; State v. Branstetter, 65 Mo. 149; State v. Banks, 74 Mo. 592; State v. Palmer, 88 Mo. 568.
Stratton Shartel, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.
(1) The indictment is sufficient. Sec. 3297, R.S. 1919, as amended, Laws 1921, p. 196; Secs. 3312, 3305, R.S. 1919. It is not subject to the objection that it does not describe the premises or ownership thereof. State v. Grubbs, 316 Mo. 243, 289 S.W. 852; State v. Tipton, 307 Mo. 500, 271 S.W. 55; State v. Crunkleton, 278 S.W. 982. Appellant was acquitted of charge of burglary; consequently the indictment need not be tested according to the strict rules applicable to that charge. (2) An accessory before the fact is one who is not present, either actively or constructively, at the place of the commission of the crime, but who counsels, procures or commends it. 29 C.J. 1066; State v. Hayes, 262 S.W. 1037; State v. Darling, 216 Mo. 459. He may be charged, tried, convicted and punished in same manner as the principal. Sec. 3687, R.S. 1919. (3) The application for change of venue because of prejudice of the inhabitants was properly overruled. Sec. 3973, Laws 1921, p. 206. There is no affirmative showing that notice of the intended application was given the State as required by said section. State v. Stough, 318 Mo. 1198. The application and supporting affidavits must, in counties of less than 75,000 inhabitants, contain facts (not legal conclusions) of probative value, and the statute contemplates that such facts shall be in lieu of evidence ore tenus. State v. Hancock, 7 S.W.2d 276; State v. Bradford, 314 Mo. 698. The supporting affidavits must show on their face that the makers thereof reside in different neighborhoods. State v. Stough, supra. The application in question being deficient in these respects, did not comply with the statute. (4) There is no reversible error in the prosecutor's opening statement. Statements of matters which are expected to be proven are proper, even though the evidence is not produced, or is excluded. State v. Rasco, 239 Mo. 535; State v. Richmond, 12 S.W.2d 34; State v. Henggeler, 312 Mo. 15. Three objections were made. One was sustained, and the prosecutor limited once and cautioned once. Proper and ample precaution was taken to protect defendant's rights. (5) Defendants charged with the same crime may be separately indicted and tried. When so indicted, the evidence of one is admissible against the other. State v. Braden, 295 S.W. 784; State v. Umble, 115 Mo. 452; State v. Myers, 198 Mo. 225.
The defendant Harry Parker was charged by indictment in the Circuit Court of Ralls County with burglary and larceny. It was alleged that on the night of June 30, 1927, in the County of Ralls he broke into the building of the Kroger Grocery Baking Company, a corporation, with felonious and burglarious intent, and then and there did steal, take and carry away 2500 pounds of cane sugar of the value of $175.
The defendant, June 29, 1927, informed a colored man named Walter White, who operated a little grocery store in Hannibal, that he, Parker, wanted some sugar; the amount was not stated, but White seemed to know it was large. Another negro named Kipper later joined White in a conference with Parker on the subject. There is nothing in the evidence to indicate that those colored men were dealers in sugar. On the contrary, they did not know how nor where to procure it. Parker told them to go to the Kroger Grocery store in New London and they would find it. On the following night Parker repeated his instructions, and one William Holman, appearing for the first time in the venture, drove up in a Ford car. Kipper and White got in with him. They picked up a fourth man named Dan Anderson and drove to New London, where Holman abandoned the enterprise and vanished. The other three men continued to the rear of the Kroger Grocery Baking Company store and saw through the rear windows the sugar they were instructed to find. They needed a truck, for they must transport their find. Opportunely a garage of the highway department was maintained in New London and in it was a Chevrolet truck, which the adventurers took and drove back to the Kroger store. They backed it up to the rear of the store, and Kipper effected an entrance through a window while the other men kept a lookout. The three then loaded the truck with twenty-five sacks of sugar, each containing one hundred pounds, and drove with it to Hannibal on Highway 61. At a place known as "Toll Gate House," they turned off the highway, drove across some railroad tracks and stopped to wait for Parker. Parker was late in arriving. They tried to locate him by telephone. Some one in a house near grew suspicious and raised an alarm. Two of the men ran away. White courageously remained by his loot. Parker arrived after a while, said that the situation was "all sweet," and led in a roundabout way with one George Ham in the latter's Ford coupe, the truck load of sugar following. The truck became stalled on a hill, the sugar was unloaded, divided, and Parker took charge of it. The state license was removed from the truck, and the three negroes were instructed by Parker to drive it as near to New London as possible and leave it. That was accordingly done. Ham went along and drove the negroes back to Hannibal in his Ford.
The next day the theft of the sugar and the truck was discovered. A search warrant was obtained and the "Owens place" searched. The officers found there all of the sugar with twelve or fifteen sacks open. The State claims that this indicated an attempt to transfer the sugar to other sacks, numbers of which were lying around.
There was evidence that all the participants in this transaction had bad reputations. The case was made out almost entirely on the evidence of White and Anderson, both of whom were under indictment for the offense. The jury found the defendant guilty of grand larceny, and assessed his punishment at imprisonment in the penitentiary for three years. Judgment followed, and he appealed.
I. Appellant assigns error to the action of the court in overruling his application for change of venue. He Change filed five affidavits by five different persons, all of Venue. in almost exactly the same form, stating that the defendant could not have a fair and impartial trial in Ralls County, because of the bias and prejudice in the minds of the inhabitants of that county. No facts were stated and nothing to show that the affiants resided in different parts of the county, as required by Section 3973, Laws 1921, page 206. These affidavits were in effect the same as a joint affidavit, which this court held insufficient in State v. Bradford, 314 Mo. l.c. 698, 699.
On suggestion by the court that the affidavits were insufficient, defendant's counsel asked leave to withdraw them and refile them, and offered oral proof to show that the five affiants lived in five different neighborhoods in the county. The court sustained objection to the oral proof and suggested that the defendant might amend his affidavits so as to cover the necessary features omitted. This the defendant declined to do, but offered to prove by witnesses that the inhabitants of Ralls County were prejudiced against the defendant so that he could not have a fair and impartial trial. This, on the theory that under said Section 3973, after filing two affidavits as to such prejudice, the defendant may prove the facts. The State objected to such evidence, because no notice of the intended application for change of venue had been served. Section 3973 provides that when a petition for change of venue shall be supported by two disinterested citizens of the county, the allegations of the application shall be proved to the satisfaction of the court, and "the prosecuting attorney may in such case offer evidence in rebuttal of that submitted thereon in support of such application."
The prosecuting attorney would necessarily require reasonable notice in order that he might gather witnesses by whom to present that rebuttal testimony. Since no notice was given the offer of the defendant was properly refused and the application for continuance was properly overruled. [State v. Stough, 318 Mo. l.c. 1202.]
II. The appellant complains of remarks made by the prosecutor in his opening statement to the jury. The prosecutor said that the police department of Hannibal made a raid on the Owens place and found a quantity of mash. The objection of Remarks of counsel for the defendant to this remark was Prosecuting sustained, and the jury was instructed not to Attorney. consider what the prosecutor had said relating to the mash. No reprimand was asked nor any further action of the court was requested by the defendant as to that remark. Another remark was that 2500 pounds of sugar were found on the Owens place and the premises were in the possession of defendant Parker. This was objected to and the court overruled the objection. It is not shown nor indicated that the prosecutor in making that remark did not expect in good faith to make such showing at the trial. The proof sufficiently shows that Parker took possession of the 2500 pounds of sugar. We think the court could not be convicted of error in that respect.
III. The defendant filed a motion to quash the indictment on the ground that it did not attempt to state the place where the burglary was committed, or describe the building Description which was entered. The indictment charged the of Place. defendant with burglary and larceny in breaking into the building known as the Kroger Grocery Baking Company store situated in Ralls County. The defendant was convicted of larceny, but acquitted of burglary. He now claims that the charge that he committed grand larceny in Ralls County is not sufficiently definite in locating the place. It is argued that the Kroger Grocery Company was a chain store corporation. The court could not take judicial notice of that fact, and there was nothing to show or indicate that there was more than one Kroger Grocery Baking Company store in Ralls County. Nothing at the trial indicated any uncertainty or confusion in the mind of defendant as to the whereabouts of that particular store. [State v. Grubbs, 316 Mo. l.c. 245, 246; State v. Tipton, 271 S.W. 55.]
IV. The proof did not show that the defendant broke into the Kroger store, but that he was accessory before the fact; that he hired other men to do the breaking in and to steal Accessory the sugar. Appellant complains that the defendant Before Fact. was not charged as an accessory but as a principal, and the proof did not sustain the charge. Section 3687, Revised Statutes 1919, provides that an accessory before the fact in the commission of a felony "may be charged, tried, convicted and punished in the same manner, as the principal in the first degree." This statute has been construed to cover just such cases as this. [State v. Rennison, 306 Mo. l.c. 484; State v. Millsap, 310 Mo. l.c. 513, 514.]
V. The point is made that the court permitted witnesses White and Anderson to be interrogated about other stolen property they had in their possession. Appellant does not point out Connected the particular part of their testimony objected to. It Facts. probably relates to the taking of the truck and removing the license plate, all of which evidence was entirely proper as all this was done in the perpetration of the crime of larceny which the defendant was charged to have committed through the agency of those two men.
VI. It is claimed that a case was not made out against the defendant:
(a) Because Anderson and White, on whose evidence the defendant was convicted, were codefendants and therefore not competent witnesses. They were separately indicted. They Codefendants. were not joined with the defendant in the same indictment, and therefore they were not codefendants within the meaning of that principle. Their evidence was competent.
(b) It is asserted that there was no proof that the Kroger Grocery Baking Company was a corporation. Oral evidence offered by the plaintiff showed that it was a corporation, and no objection was made to that evidence at the time it Corporation. was offered as sufficient to prove the fact. Besides, it was not necessary to prove that the owner of the sugar was a corporation. [State v. Carson, 18 S.W.2d 457, l.c. 460, 461; State v. Hedgpeth, 311 Mo. l.c. 458.]
(c) It is claimed further that the evidence was insufficient to make out a case of larceny. The evidence set out above sufficiently shows that the defendant employed the two Proof of men, White and Anderson, to procure the sugar, and told Larceny. them where to get it, and advised them about the method of getting it. That they took it in Ralls County, hauled it to him, according to his instructions, and he received it. The case was sufficiently made out, authorizing Instruction Two complained of.
VII. The appellant contends that his motion for new trial should have been sustained on account of newly-discovered evidence. The motion sets out facts which it is claimed the newly-discovered witnesses would swear to, but, Newly-Discovered except in one instance, there is no proof that Evidence. such witnesses would swear to the facts stated. The motion does not prove itself.
The one exception was the affidavit of William Orie Holman as to what he knew about it. Neither his affidavit nor the motion shows that defendant exercised any diligence to find out what Holman knew about it. It is not shown that he was not Diligence. present at the trial. His affidavit shows he was in company with White and Kipper on their ride to New London. Parker could easily have found that out, for he knew who the State's witnesses were. March 5, 1928, on application of the prosecutor leave was granted to endorse on the indictment the names of several witnesses for the State, including Walter White, Dan Anderson and Orie Holman. The trial began May 9, 1928. Thus defendant knew two months before the trial that Holman would be a witness; yet he made no effort to find out what Holman would swear to. The court did not err in that respect.
VIII. Appellant assigns error to the failure of the court to instruct on all the law of the case. He has pointed out no particular instruction which the court should have given and failed to give. We have examined the instructions given by the court and we are unable to find any lack of sufficiency All Law on every point involved in the case. A good many of Case. assignments in the motion for new trial are not sufficiently specific to meet the requirements of the statutes. We have considered all the errors properly assigned and do not find that the court committed any reversible error.
The judgment is therefore affirmed. Blair, P.J., concurs; Walker, J., absent.