Opinion
No. 43740.
November 9, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS.
C. Arthur Anderson, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Richard R. Nancy, Jr., Asst. Atty. Gen., for respondent.
Defendant was indicted for the theft of two batteries ($36.40 value), 24 G.E. 4030 type light bulbs ($20.16 value), 12 sets of piston rings ($93 value) and four cartons of masking tape ($46.56 value) of a total value of $196.12, all the property of the Auto Parts Company, Inc. The jury found defendant "guilty of grand larceny as charged in the indictment" and assessed his punishment at two years imprisonment in the penitentiary. He has appealed from the ensuing judgment and sentence.
Defendant here contends that: The trial court erred in overruling his motion for a directed acquittal at the close of the state's case, in admitting certain evidence and in failing to declare a mistrial because of alleged improper argument by the assistant circuit attorney.
The main office of Auto Parts Company, Inc., is at 3201 Locust, St. Louis. Of its five branch offices or stores, one is at 5627 S. Kingshighway and another at 3215 Cherokee. Defendant had been the company's employee for ten years. For some time prior to July 11, 1951, defendant was a truck driver and his duties were to receive auto parts at the main store and deliver them to the Kingshighway and Cherokee branches. The practice was: Main office order clerks or supervisors would take parts, requisitioned by the branch managers, stocked on the shelves on the ground floor and in the basement, prepare bills of lading therefor, place the parts in the bin assigned to the particular driver, hand the driver the bills of lading, supervise the driver's loading of his truck and "check out" the items listed in the bills of lading. Defendant and the other drivers had access to both the ground floor shelves and the basement.
On July 11, 1951, a check showed that several batteries were missing. This information was given to the branch managers. When defendant arrived at the Kingshighway branch that day, Keaty, the branch manager observed two battery containers or cartons on defendant's truck Keaty, who had not requisitioned batteries, asked defendant about the cartons and defendant said that the cartons were empty. Keaty took the empty cartons, informed the main office, and delivered the cartons to the company's vice-president that evening. On July 12, 1951, the company officials reported the matter and gave the two cartons to the police.
Sergeant Eresh arrested defendant at the Kingshighway branch about 4:45 p. m. the next day, July 13. At the police station that evening, defendant was shown the cartons and questioned. He admitted taking the two batteries on July 11 and selling them to George Durand of LeMay; and admitted taking 24 G.E. 4030 type bulbs, 24 sets of piston rings and four cartons of masking tape. Asked if defendant explained "how he went about it," Eresh said: "He is employed at that company as a chauffeur on a delivery truck, and as he left the company for orders at various stores and garages, he put on these extra articles along with these regular orders and they were taken out and delivered to various persons." Among the "various persons" were George Durand and Woodrow Kelly of Wellston. At defendant's suggestion, Eresh and defendant went to Kelly's and Durand's places and recovered bulbs, piston rings and tape which defendant again said he had taken from the company. No batteries were recovered at either place.
Over defendant's objection, the state introduced in evidence several of the company's inventories. These inventories showed the number of items in stock on two specific dates and the purchases and sales between such dates. In brief, these records showed the following shortages: Seven batteries between March 12, 1951, and July 11, 1951, and between January 1, 1951, and July 31, 1951, 174 G.E. 4030 type bulbs, 19 sets of piston rings and 36 cartons of masking tape.
Three witnesses testified for defendant. Mrs. Teresa Hornkamp, formerly employed at the Kingshighway branch, testified that often parts were handed to customers in empty cartons, including battery cartons. Morris Brandt, Linn, Mo., a former driver for the company, had been in the Kings-highway office three or four times since April, 1947. Once he had had some rods repaired and bought some new ones; he did not recall the types of empty containers in which the rods were delivered, but "I wouldn't say they were in battery cartons." Mrs. Hornkamp and Frank Conroy testified that defendant's "reputation as to truthfulness, honesty and morality was very good."
Defendant first contends that his motion for a directed acquittal at the close of the state's case should have been sustained "for the reason that there was a failure of proof of a taking by appellant of property valued at more than $30.00 within the three years preceding the indictment." See Section 541.200 RSMo 1949, V.A.M.S. In his brief, defendant concedes that the state's evidence was that defendant admitted taking the two batteries (value $25.85) on July 11, 1951, and admitted taking the bulbs, rings and tape. Apparently, defendant also concedes that the state's evidence showed the values of the batteries, bulbs, rings and tape admittedly taken by defendant exceeded $30. However, defendant contends, the state's evidence did not show when defendant took the bulbs, rings and tape; that he "might easily" have taken those other items "three years or more before the indictment" (February 2, 1952).
In our view, the only reasonable inference drawable from the evidence — and especially from defendant's admissions — is that defendant either took those other items on July 11, 1951, when he took the batteries or at some time between the company's January 1, 1951, inventory and July 11, 1951. And the instructions required the jury to find, inter alia, that defendant took all of the items listed in the information "on or about the 11th day of July, 1951, or at any time within three years next before the indictment herein." The assignment is overruled.
Defendant next contends that the trial court "erred in admitting evidence which showed the commission of a crime other than that charged in the indictment." Defendant does not contend that the evidence as to the inventories was incompetent or did not tend to corroborate his admission that he took certain of the items listed as short or missing in the later inventories. Defendant argues that the inventories showing the shortages "exceeded in both number and value the amounts set forth in the indictment. While Mr. Ryan [the company's purchasing agent], who testified as to these records, did not state defendant took all the amounts shown to be short, the inference which the jury was bound to make is that defendant was charged with the taking of the full amount." The jury could not have reasonably made any such inference. Under the instructions, before the jury could convict defendant, the jury was required to find that he took the items (enumerating and describing them) listed in the indictment. And, as stated, the jury found defendant "guilty of grand larceny as charged in the indictment."
Defendant cites State v. Buxton, 324 Mo. 78, 22 S.W.2d 635, and State v. Garrison, 342 Mo. 453, 116 S.W.2d 23. Those cases discuss the circumstances under which evidence of an accused's other crimes may be admissible. See also 9 Mo.Digest, Criminal Law, 369-381. However, the principles discussed and applied in defendant's cited cases are not here involved. This, for the reason that there was no evidence that any of the items shown by the inventories as short or missing — other than those with which defendant was specifically charged with stealing and which he admitted taking — were stolen by defendant. The inventory records, showing that certain items were missing, were not evidence of the commission of any other crime. Which is to say, such records were not evidence of "other crimes" committed by defendant. The assignment is overruled.
Defendant's last assignment is that the trial court "erred in failing to discharge the jury after prejudicial statements by the circuit attorney in his final argument to the jury." The argument of which defendant complains was: "Mr. Bruntrager [assistant circuit attorney]: I am going to try him [defendant's attorney] just like he tried me. Why was he [defendant] held three days without bond, and you heard what Sergeant Eresh said: He said that their investigation showed there was in the neighborhood of $30,000 taken from the Auto Parts Company * * *. Mr. Anderson [defendant's attorney]: I object to that. That is not in the record; it has been ruled out and I ask for a mistrial. The Court: Objection overruled as to the mistrial. The jury in its deliberations will disregard it. After all, the case and the charges to be tried here are charges covered by the indictment and is not covered by the court. Let's continue. Mr. Bruntrager: Very well, the court won't let me argue that way. But you heard what the Sergeant said * * * Mr. Anderson: That is repetitious and, again, I am making an objection. The Court: Arguments of counsel are not evidence and are not to be considered by the jury as evidence. Proceed. You are to be governed solely and only by the law as declared by the court and by the evidence."
The record does not show that the testimony referred to by the assistant circuit attorney was in fact objected to or stricken. Assuming, however, that the argument with reference to the $30,000 loss by theft was improper, the trial court's action was not an abuse of discretion. The trial court directed the jury to disregard the statement. When the assistant circuit attorney again referred to that testimony, defendant objected on the ground that the argument was repetitious. The trial court thereupon directed the jury that arguments of counsel were not evidence and that the jury were to be governed only by the law and the evidence. Under the circumstances, the trial court did not abuse its discretion in failing to declare a mistrial.
The judgment is affirmed.
VAN OSDOL and COIL, CC., concur.
The foregoing opinion by LOZIER, C., is adopted as the opinion of the court.
All concur.