Opinion
December 12, 1927.
1. ASSIGNMENT: General: Instruction: All Law of Case. An assignment in the motion for a new trial that "the court erred in failing to instruct the jury upon all the law arising in the case and necessary for their guidance in arriving at a verdict, as requested by the defendant," where no such instruction was requested, does not specify or point out in detail and with particularity a failure to instruct on circumstantial evidence or any other matter, and does not comply with the present statute (Sec. 4079, Laws 1925, p. 198), and is too general even under the prior rule.
2. LARCENY: Sufficient Evidence. The defendant and two others were charged with burglary and larceny. The defendant testified that he was the owner of the taxicab and agreed, for a consideration of three dollars, to drive the other two, strangers to him, to the town where the burglary and larceny were committed, and when they attempted to put the stolen goods into his car he forbade them to do so, and they with drawn pistols compelled him to drive the car away from the scene of their crime and to avoid arrest by officers who intercepted the car. The jury acquitted him of the charge of burglary, but found him guilty of larceny, and the evidence being sufficient, if believed, to support that charge, Held, that this court will not pass upon the weight of the evidence.
3. ASSIGNMENTS: Abandonment. Assignments of error in the motion for a new trial which are not considered or referred to in appellant's brief may be treated as abandoned.
4. VERDICT: Larceny. Burglary and larceny are companion offenses, and if well pleaded, a verdict finding defendant "guilty of larceny only, as charged in the information" is responsive to the charge.
Corpus Juris-Cyc. References: Criminal Law, 17 C.J., Section 3333, p. 66, n. 15; Section 3559, p. 212, n. 18; Section 3593, p. 255, n. 52; Section 3596, p. 267, n. 99. Indictments and Informations, 31 C.J., Section 351, p. 784, n. 94. Larceny, 36 C.J., Section 483, p. 899, n. 34.
Appeal from Jackson Circuit Court. — Hon. Edward E. Porterfield, Judge.
AFFIRMED.
R.W. Gabriel for defendant.
(1) The court is required to instruct the jury on all questions of law arising in the case which are necessary for their information in giving their verdict. Sec. 4025, R.S. 1919; State v. Conway, 241 Mo. 271. (2) Where circumstantial evidence alone is relied upon by the State for a conviction, it is the duty of the court to instruct on the law applicable thereto without a direct request therefor by the defendant. Sec. 4025, R.S. 1919; State v. Conway, 241 Mo. 285. (3) When the State relies alone upon circumstantial evidence for a conviction and the court fails to instruct upon the law of circumstantial evidence, the failure of the court to so instruct is sufficiently saved for review by a specification in the motion for a new trial that the court erred in failing to instruct the jury upon all of the law arising in the case and necessary for the guidance of the jury in arriving at a verdict. State v. Conway, 241 Mo. 271. (4) The verdict of the jury is against the weight of evidence.
North T. Gentry, Attorney-General, and A.M. Meyer, Special Assistant Attorney-General, for respondent.
(1) The jury were justified in inferring that, if the testimony of the State's witnesses were true, the defendant willingly waited in the car for the goods to be loaded for the purpose of assisting his companions in the perpetration of the larceny. (2) Assignment in the motion for a new trial that the court erred in refusing to instruct on all the law necessary to the information of the jury in arriving at their verdict is general and insufficient as to all matters which do not go to the fundamental rights of the defendant. State v. Burrell, 298 Mo. 679; State v. Farrar, 285 S.W. 1004; State v. Conway, 241 Mo. 271. The court erred, however, in failing to instruct the jury that defendant might be either convicted or acquitted of either the burglary or the larceny or both. State v. Conway, supra. However, the error, in this case, was obviously not prejudicial and did not tend to prejudice the substantial rights of the defendant, because defendant was convicted of larceny only, and the jury were not misled by the non-direction. State v. Crunkleton, 278 S.W. 982; State v. Henderson, 284 S.W. 800; Sec. 3908, R.S. 1919. (3) The verdict is sufficient to uphold the judgment. The verdict found the defendant by name guilty of larceny only and assessed the punishment. State v. Jackson, 283 Mo. 23. This was an acquittal of the charge of burglary. State v. Hays, 252 S.W. 380; State v. Perry, 267 S.W. 831; State v. Howard, 203 Mo. 600.
The appellant (a negro) was charged with burglary and larceny by an indictment filed in the Circuit Court of Jackson County. The jury found him guilty of larceny only and assessed his punishment at imprisonment in the penitentiary for two years. He was sentenced in accordance with the verdict and then appealed.
The State's evidence shows that on January 27, 1926, the day in question, William H. Slaughter lived in an apartment house over a grocery store on North Main Street in the city of Independence, in Jackson County. Slaughter testified that, about nine o'clock in the evening of that day, he observed an automobile parked in front of the grocery store and near the entrance to a public alley. The automobile was a dark colored sedan. At that time, there was one negro man in the front seat and two negro men in the back seat of the car. When he observed the car again, a few minutes later, only one of these men was in the car. Shortly thereafter, his wife "got all excited" and directed his attention to some men in the alley mentioned. By the aid of lights in the alley, he saw this car standing in the alley at the rear of Harbin Brothers Clothing Store and two men carrying bundles and putting them in the car. He went immediately to the sheriff's office, a short distance from his residence, and reported as to what he had seen. When a deputy sheriff and other witnesses reached the scene, the car had left the alley and started in the direction of Kansas City. An inspection of the store disclosed that an iron bar on one of the rear windows had been sawed and bent, the glass in the window broken out, and the lock broken off of the rear door on the inside. A large amount of merchandise was missing and overcoats, caps and other articles of clothing were "knocked down on the floor." The police department of Kansas City was notified and, sometime later in the evening, a car was discovered moving west on 15th Street in Kansas City, with three negro men on the front seat and bundles piled in the back part of the car. Several police officers in a "hot shot" Ford car were stationed at this point. When the spot-light of the police car was turned on the other car, "it began to speed up" on 15th Street for two blocks, turned south to 19th Street, then east and "made a circle," then ran off of the pavement and stuck in the mud and stopped. Appellant, who was driving the car, and his two companions jumped out of the car and started to run. They were halted and arrested by the police officers, who had joined in the chase. The other two negroes gave their names as Walker and Adams. One of them said he threw away his pistol after he got out of the car, but no firearms were found on the person of either of them or appellant at the time of their arrest. Sixty suits of clothes, 22 overcoats and 8 large pieces of goods were found in the car and returned to Harbin Brothers upon their identification of the same. Louis A. Harbin, a member of the firm, estimated the value of these articles at $3600. It appears from the testimony of one of the police officers, that both Walker and Adams were ex-convicts and that one of them had been released from the Missouri penitentiary "about 24 days" before this occurrence. Allen Selby, another witness for the State, said that he saw the "dark-colored closed car" parked in front of the grocery store on North Main Street at "a quarter of nine" and that "two colored men" were in the car when he saw it. The State's evidence further shows that the automobile captured by the police officers was a Hupmobile sedan.
Appellant took the stand and testified quite at length in his own behalf. He said he was thirty-seven years old and had worked at Swift Company's packing house in Kansas City for about twenty years, but since 1922 had been engaged in the taxicab business; that "between seven-thirty and eight o'clock" he responded to a call at "1604½ East 12th Street;" that these two negroes then engaged his taxi for "three dollars an hour" and said "take us to Independence;" that he did not know their mission, but thought they were going to see a woman, because they talked "about some woman named Helen;" that they asked him to stop first in front of a drug store, and both left the car for about twenty minutes; that the next time they got out his car was parked "just at the head of the alley;" that he went to sleep while sitting in the car and in a few minutes one of them returned and told him to drive through the alley; that when he "got half way" he was ordered to stop, and the negro in the car got out and started to load bundles into the car; that he said, "No, you can't put that stuff in my car," and then the other negro showed up with a pistol, and that one of them held the pistol on him while the other loaded the bundles in the car; that both of them got in the front seat with him and one of them kept the pistol pointed at him all the way to Kansas City; that the negro with the pistol threatened to shoot him several times when he started to kill the engine and also when he started to jump out of the car; that he slowed up purposely when he saw the police officers on 15th Street and one of them stepped on the accelerator and ordered him to drive fast and make the turns that he made; that he did not know these negroes at the time, but learned after the trouble that their names were Lukins and Evans; and that he told the police officers the same story that he told at the trial. Several witnesses testified to his good reputation for truth and veracity and some of these witnesses vouched for his good reputation for honesty and integrity.
I. Counsel for appellant earnestly contends that this conviction should not be permitted to stand because of the failure of the trial court to instruct the jury on Assignment: the law of circumstantial evidence. The only General. assignment of error in the motion for a new trial touching this matter is as follows:
"3. Because the court erred in failing to instruct the jury upon all the law arising in the case and necessary for the guidance of the jury in arriving at a verdict in this case, as requested by the defendant, over the exception of the defendant."
The record fails to show that any such instruction was requested by defendant, and counsel, in his brief, concedes that no instruction of this character was offered. This leaves the assignment in the motion standing only as a general complaint against omitted instructions, without specifying or pointing out "in detail and with particularity" the failure to instruct on circumstantial evidence or any other matter. It is apparent at once that this assignment does not comply with the present rule relating to motions for new trial, as provided by the Act of 1925. [Laws 1925, p. 198; State v. Standifer, 289 S.W. 856.] Moreover, general assignments of error on this ground were held to be insufficient under the old statute. [Sec. 4079, R.S. 1919; State v. Farrar, 285 S.W. l.c. 1004; State v. Burrell, 298 Mo. l.c. 679, 252 S.W. l.c. 711; State v. Conway, 241 Mo. l.c. 291, 145 S.W. l.c. 448.] Counsel for appellant relies, in this case, upon the exception to the general rule announced and followed in the Conway case. Of course, appellant cannot, in this case, invoke the exception to the general rule declared in the Conway case, because that case was decided long before the Act of 1925. And, in this connection, it should also be noted that this court did not follow the Conway case in later cases under the old statute. This plainly appears in the application of the general rule in the Farrar case and the Burrell case, cited above, no exception to the rule being recognized or considered in those cases. See also separate opinion of GRAVES, J., State v. Swarens, 294 Mo. l.c. 158, 241 S.W. l.c. 941.
II. The only other complaint mentioned or considered by counsel for appellant, in his brief, is that the verdict is against the weight of the evidence. The motion for a new trial assigns error on that ground, but this point must necessarily fail of consideration in this court. Obviously, the jury did not accept, as true, appellant's explanation of the incriminating Weight of circumstances shown against him, but were satisfied of Evidence. his guilt, of the larceny charged. Doubtless, they concluded that he had no part in the burglary, as they acquitted him of that charge. However, it is elementary that this court will not weigh the evidence or pass upon the credibility of the witnesses.
III. Other assignments of error contained in the motion for a new trial are not considered or referred to in appellant's brief, which was prepared by learned counsel. In this situation, we would be justified in treating such other assignments as abandoned. [State v. Bishop, 296 S.W. 147; State v. Murrell, 289 S.W. 859; State v. Kelley, 284 S.W. 801.] Nevertheless, we have carefully examined the entire record and find no error. The companion offenses of burglary and larceny are well pleaded in the indictment; the jury found appellant "guilty of Larceny only, as charged in the indictment," thereby making their verdict responsive to the issue; and the evidence is amply sufficient to support the verdict and the judgment based thereon.
Accordingly, the judgment is affirmed. Higbee and Davis, CC., concur.
The foregoing opinion by HENWOOD, C., is adopted as the opinion of the court. All of the judges concur.