State v. Koplan

BURGESS, J. Defendant was convicted in the circuit court of the city of St. Louis of grand larceny in feloniously stealing a number of larv books and his punishment fixed at two years’ imprisonment in the penitentiary, under an indictment charging him and one Louis Dryden with stealing “two dozen silver forks, two dozen silver tea spoons, four hundred law books (or more), one shotgun, three clocks, one seal sacque, one opera cloak, and one lot of bed clothing, of the aggregate value of fifteen hundred dollars, the property of one Selden P. Spencer.” He appeals. The facts briefly stated are about as follows: In the absence of Judge Selden P. Spencer and his family from their home in the city of St. Louis, during the' summer and the month of September, 1900, his residence was left in the charge of one Louis Dryden, a negro servant. In his residence Judge Spencer had his law library of some four or five hundred books. Sometime in September, 1900, Dryden met the defendant near Judge Spencer’s residence, when defendant asked Dryden if there wasn’t something there he could buy. This was on the morning of September 27, 1900, at which time Dryden sold defendant some bottles in the cellar. While they were in the cellar getting the bottles defendant asked Dryden if he had any books down in the cellar. He told him yes, and they went to the third floor where the books were, and got from a trunk some rags, which Dryden sold to defendant, and while there Dryden also sold him the law books for four dol [302] lars and fifty cents, which defendant returned with his wagon the next day and hauled away. Dryden rendered him no assistance in anyway in removing the books. On his return home the last of September, Judge Spencer found that his law books had been taken, the bedclothing from all of the beds, quilts, spreads, and all of his personal clothing that had been left there, his own and Mrs. Spencer’s clocks and silverware, and Judge Spencer’s gun had all disappeared. Upon an examination he found that they had been stolen and the negro left in charge had disappeared. He was afterwards apprehended in Kansas City, Missouri, and brought back to St. Louis. It appears from the record and the evidence that Dryden had perpetrated another crime; that he had forged Judge Spencer’s name; that he entered a plea of guilty and was sentenced to the penitentiary for five years for that crime. Before the case against Koplan came for hearing, a nolle prosequi was entered as to the charge against Dryden, and while under sentence on a term in the penitentiary he was used in the trial of this cause as a witness against the defendant. It is said that the indictment is bad, in that, the various articles therein alleged to have been stolen were of an aggregate value, and as there was nothing on the face of the indictment to show that the books, the only articles proven to have been stolen, were of the value of more than .thirty dollars, that the instruction to acquit, requested by defendant at the close of the State’s evidence, should have been given. The action of the court in this regard was a matter of exception, and as the record does not show that an exception was taken and saved at the time to the court’s ruling that matter can not be considered on this appeal. [State v. Marshall, 36 Mo. 400; State v. Harvey, 105 Mo. 316; Ross v. Railroad, 141 Mo. 390, and authorities cited; State v. Murray, 126 Mo. 526.] Nor is there merit in the contention that the indictment [303] is bad because it charges the value of the articles stolen in the aggregate. While the better practice doubtlessly is, when the articles alleged to have been stolen are of a different character, to assign a value to each article or separate piece of property, it is almost universally held, that an indictment which charges their value in the aggregate is good. [State v. Beatty, 90 Mo. 143, and authorities cited. To which may be added, 2 Hale’s P. C. 183; Wharton’s Criminal Pleading and Prac. (9 Ed.), sec. 206 to sec. 217; Bacon’s Abr., 560; Meyer v. State, 4 Tex. App. 121; Clark’s Criminal Procedure, p. 226; State v. Buck, 46 Me. 531; Kelley’s Criminal Law and Prac., sec. 648; State v. Mook, 40 Ohio St. 588; 2 Bishop’s New Criminal Procedure, sec. 714; 1 McClain’s Criminal Law, sec. 586.] It is insisted that, as Dryden was the servant of Judge Spencer and as such in the possession of the law books which he sold to defendant for four dollars and fifty cents, the asportation of defendant was Dryden’s asportation, and that defendant was only guilty of receiving stolen property knowing it to be stolen. Dryden testified that he had nothing whatever to do with the removal of the books, but that defendant himself removed them from the third story of the house, and carried them down from there, some of them in sacks, and put them in his wagon which he had standing in the alley near the house. Hnder these circumstances can it be said that the removal of the books Swas Dryden’s asportation alone, and not the asportation of both of them. We think not. The evidence all shows to the contrary, and that Koplan was not acting in good faith. The physical facts, namely, the absence of Judge Spencer which he knew, that Dryden was his servant and in possession of his residence and contents, his inquiry of him if he had any books to sell, his purchase of them for the insignificant sum of four dollars and fifty cents when they were worth at least three hundred and sixty-five dollars, are abso [304] lutely inconsistent with the idea that he did not steal the books. There can be no larceny in the absence of an asportation of the property alleged to have been stolen, but it is immaterial how slightly defendant participated in the asportation (2 Bishop’s New Criminal Law (8 Ed.), sec. 194), which in this case was by defendant, but which was the completion of the theft committed by them both. The books were not removed by defendant by the order of Dryden, but by his knowledge and consent and as part of the execution of the scheme to steal them, in which they were accomplices, and it is said that the court erred in refusing the instruction asked by defendant upon the theory that they were accomplices. It is well settled that when a conviction is sought upon the testimony of an accomplice alone3 a cautionary instruction, to the effect that the jury are at liberty to convict the defendant on the uncorroborated testimony of an accomplice alone, if they believe the statements as given by such accomplice in his testimony are true in fact and sufficient in proof to establish the guilt of defendant, but that the testimony of an accomplice when not corroborated by some person or persons not implicated as to matters material to the issue, that is, matters connecting the defendant with the commission of the crime charged agaiust him and' identifying him as the perpetrator thereof, ought to be received with great caution by the jury, and they ought to be fully satisfied of its truth before they should convict the defendant on such testimony, should be given (State v. Sprague, 149 Mo. 409, and authorities cited), but where there is other evidence than the accomplice, identifying the defendant as the perpetrator of the crime, no such instruction is necessary. Now, while Dryden was not corroborated as to anything that was said in the house, he was as to the asportation of the books, by two disinterested witnesses, William Green and James Osborn, the former of whom testified to having seen defendant put a sack of books in his wagon which -was standing in the alley in the rear of [305] Judge Spencer’s residence, and the latter to having seen both Dryden and defendant carrying out books from the same place and pouring them into a wagon standing in the alley at the same pláce. The removal of the books was necessary in order to constitute the offense of larceny and the testimony of these witnesses with respect to the larceny connected him with the commission of the crime, hence, no error was committed in not giving a cautionary instruction with reference to the testimony of Dryden as an accomplice. The defense was an alibi, that is, that the defendant was elsewhere than at the place of the commission of the crime at the time it was committed. The court gave no instruction upon this theory of the case, although defendant testified that he was not present at the commission of the offense, and called the court’s attention to the fact that the instructions given “do not cover the whole law of the case,” and in this we are of the opinion committed reversible error. Eor these considerations the judgment is reversed and the cause remanded. All concur.