State v. Stamper , 314 Mo. 635 ( 1926 )

The appeal is from a conviction and sentence in the Circuit Court of Boone County, February 16, 1924, on charge of grand larceny. The defendant was charged jointly with one Calvin Moberg with burglary and larceny committed August 1, 1924, by breaking into a store building of one Ford Honey in Boone County, and stealing forty-one dollars in money. There was a severance, and the two were tried separately.

Ford Honey owned a garage and store building in Centralia, Boone County. The building faced Main Street, toward the Chicago Alton station. The night of August 1, 1924, the store was entered from the rear through a window which was pried up and the lock broken. The cash register was rifled and $41 in cash taken.

The case against the defendant was made out almost entirely on the evidence of Braxie Boyd, who had a room across the Chicago Alton Railroad tracks. On the night of the burglary he had been to a dance. He returned to his room about midnight and went to bed. He was awakened at 2:30 or three o'clock in the morning by voices, and found Harold Stamper and Calvin Moberg sitting on the side of his bed, counting money. One of them said, "Here is ten for me and ten for you." Boyd raised up, saw they were counting money, and asked what poor devil they had got. One answered, "Poor Honey." Braxie said to them, "This is no way for you to do me. Suppose the law should see you counting money, in my room; I would be in a nice predicament, wouldn't I?" He then told Moberg to go home. He told Stamper that he could stay with him that night; to put the lights out and go to bed. Stamper stayed the night with him. While with him they explained how they got into the garage by using a hatchet to pry up the window. On cross-examination Boyd said the money they were counting was paper money. He saw five or six bills.

The next morning Stamper said he needed a pair of shoes and asked Boyd to go to Joe Green's store and get a good pair; he would then give Boyd the money to go back and pay for them. He explained that he did not want the bills identified, and he said to Boyd, "Nobody would suspect you."

Boyd said he told all about the matter the next morning to H.M. Pruett, night operator at the Chicago Alton passenger station. The night marshal of Centralia, Mr. Crittendorf, testified that he saw Stamper and Moberg that night about eleven or twelve o'clock in the alley back of the garage. Pruett testified that he saw Braxie Boyd go to his room about 12:30 that night, and later saw a light in the room and three people there, one of whom seemed to be undressed for bed. Next morning he had a conversation with Boyd in which Boyd told him about the occurrences of the night before.

Stamper testified on his own behalf that he had nothing to do with burglarizing Honey's store, and did not divide any money with Moberg in Boyd's room. Other evidence was offered by defendant to show that Boyd's reputation for morality was bad.

The State offered evidence to show that the defendant's reputation for truth and veracity and honesty was bad.

I. The State insists that there is nothing for consideration here except the record proper, which does not show that the bill of exceptions in the case was ever filed. The record proper is presented under one cover, and what purports to be the bill of exceptions under a separate cover. This latter document appears to be the original bill of exceptions, and not a transcript certified by the clerk. The State does not object that it is the original bill instead of a transcript, but insists there is no record to show it was filed. Both these documents were filed in this court at the same time. The certificate of the circuit clerk is attached to the record proper, and indicates that it was intended to certify to the entire record, including the bill of exceptions. It is not in good form and does not name the bill of exceptions, nor the record. It simply says that it is a full and complete copy of the transcript. Undoubtedly it was intended by the clerk to be a certificate of the correctness of his copy of the proceedings in the case, including the entire record, though he failed to use appropriate words to describe it. In view of that intention we hold that the certificate applies to the bill of exceptions as well as to the record proper.

But the record proper does not recite that the bill of exceptions was filed. The Attorney-General cites a number of decisions holding that the failure of the record proper to show such filing prevents a consideration of alleged errors in the bill of exceptions. That holding has been apparently without qualification, but there is a qualification. It applies only to a case where the bill of exceptions is filed when the court is in session to make a record of the filing. Where the order of court authorizes the filing of a bill of exceptions in vacation, there is no record to show it. The matter has been under consideration a number of times in this court, and it has been held that where a bill of exceptions is filed in vacation, an entry of record furnished no evidence of the filing, but the clerk's endorsement upon the bill of exceptions is certification of the fact that it was filed, and it identifies the bill as the one filed in the case. [Carter v. Prior, 78 Mo. 222, l.c. 226; Ferguson v. Thacher, 79 Mo. 511, l.c. 514; State ex rel. v. Broaddus, 207 Mo. l.c. 127-28; Railroad v. Turner, 177 Mo. App. l.c. 464; LaFollette v. Thompson, 83 Mo. 199; Waltemar v. Schnick's Estate,102 Mo. App. 141; State v. Parker, 301 Mo. l.c. 299.]

It is said in the case of State ex rel. v. Broaddus, and case of Railroad v. Turner, supra, that there is no authority for a clerk of the circuit court to make a vacation record, and that a certificate of the filing, appearing elsewhere than on the bill, has not the dignity of a record, whatever value it may have as evidence. But the clerk's endorsement upon the bill itself is evidence that the bill was filed. In the Parker case, supra, there was nothing in the record proper to show the filing of the bill of exceptions, but the clerk certified to the entire record, including the bill of exceptions; that it was a true and complete copy of all the record, proceedings and papersfiled in the case. That was held sufficient evidence that the bill of exceptions was filed. In the Carter case, supra, the court said, l.c. 226: "If filed in vacation, the fact must be evidenced by the endorsement of the clerk on the bill of exceptions." We find no ruling of this court that conflicts with that statement of the law, although there are cases which intimate that a statement by the clerk on the record in vacation that the bill of exceptions was filed, answers the same purpose. In this case, on the bill of exceptions is the endorsement of the clerk: "Filed October 16, 1925, Jos. T. Harris, D.C." Under the authorities mentioned we take it that that is sufficient evidence that the bill of exceptions was filed, if it was filed in vacation.

There is nothing on the paper to show whether the filing was in vacation or not.

Section 2331, Revised Statutes 1919, provides that the clerk shall make on the margin of each pleading and paper attached to the file, a memorandum of all orders and entries in relation thereto with reference to the book and page in which each order shall have been entered. The bill of exceptions, no doubt, is one of the papers forming the record within the meaning of Section 2330, and if the bill of exceptions in the case was filed in term time, so that an order of court was made of its filing, under Section 2331 the clerk must have noted on the margin of the bill a memorandum referring to the book and page where the order was made. No such notation is made on the margin nor any part of the bill of exceptions presented here. The clerk is presumed to have discharged his duty, in absence of evidence to the contrary. The absence of such a minute indicates that such bill of exceptions was filed in vacation, and therefore the record proper could not show that it was filed.

The October term of the Circuit Court in Boone County begins on the first Monday in October. The bill of exceptions was filed on the 16th of October. There is nothing in the record to show that the term continued to that date, and assuming that the clerk did his duty we will presume that the bill of exceptions was filed in vacation. For these reasons the entire record is before us for consideration.

II. Appellant assigns error to the giving of Instruction 1. It authorized the jury, on a finding of stated facts, to find the defendant guilty of burglary and to assess his punishment at not less than two years' imprisonment in the penitentiary. The instruction then continued and directed the jury,Instruction: if they found the defendant guilty of burglary, andBurglary and further found that he took, stole and carried awayLarceny. the forty-one dollars referred to in the information, to find him guilty of larceny and assess his punishment at imprisonment in the penitentiary for not less than two years, nor more than five years. The jury rendered a verdict finding the defendant guilty of larceny only, and assessed his punishment at imprisonment in the penitentiary for two years. It is objected that the instruction did not authorize the jury to find him guilty of burglary alone, nor of larceny alone, but required them to find him guilty of burglary in order to find him guilty of larceny; that he was entitled to an instruction clearly upon each defense separately. If the instruction was erroneous in that respect the defendant cannot complain. It did not harmfully affect him in the verdict rendered. It was an error against the State; it put an additional burden upon the State by requiring it to prove that the defendant was guilty of burglary in order to find him guilty of larceny.

III. Error is assigned to the giving of Instruction 4, in the usual form, regarding a common design or community of intention between Stamper and Moberg in accomplishing the burglary and larceny. The objection is not to the form of anConspiracy. instruction, but that there is no evidence of a common design or purpose. With a view to considering this instruction we have set out above the evidence at some length on that point. The defendants were together dividing the plunder, and admitted that they acted and operated together in entering the store and taking the money. This is sufficient to authorize a finding by the jury that there was a common purpose in the undertaking. A conspiracy may be proven by circumstances. It is not necessary to prove that parties who engage in a common enterprise to commit a crime made a definite agreement before committing the crime. [State v. Delbono, 306 Mo. l.c. 562; State v. Simpson, 237 S.W. 748; State v. Lewis, 273 Mo. l.c. 531; State v. Glon, 253 S.W. 364.]

IV. In the direct examination of Boyd he was asked to whom he first told the conversation with Moberg and Stamper in his room, and said he told Mr. Pruett the next morning. Then he was asked if, at the preliminary examination, he didn't state that he didn't tell anybody about it for three weeks after it happened, because he didn't care anything about it and didn't tell it until suspicion was directed toward him. The State objected to that question, and the objection was sustained. The defendant noted an exception. The justice of the peace, witness for the defendant, who presided at the preliminary examination of Moberg and Stamper, was asked to state whether or not Braxie Boyd had so stated. The objection of the State to that question was sustained. Then defendant's counsel offered to prove that Boyd, at the preliminary examination, testified that he didn't tell anyone about the two boys being in his room dividing the money until three weeks after the burglary, and when asked why he didn't tell it sooner he said because he didn't care anything about it until suspicion was directed toward him and he did it to save his own skirts.

The Attorney-General concedes that the testimony was proper, and the court was in error in refusing to allow the witnesses to answer the question, but makes the point that when defendants made the offer of proof the court made no ruling on it and no exception was saved to the refusal of the court to permit it. He overlooks the fact that the question itself, addressed to the justice of the peace, suggested the answer. An exception was duly saved to the ruling of the court in sustaining the objection. The offer then to prove that the witness would answer the question in the manner indicated in the question added nothing to the force of the exception already noted. The court refused to allow an answer to the question. That was the erroneous ruling. Even if the question had not indicated the answer, the offer of the defendant merely showed what would be the answer, and it was not necessary for the court to rule again, nor for the defendant to except again to the ruling.

Braxie Boyd was the witness by whom the State made out its case, and the defendant had a right to prove any fact which would affect his credibility. For this error the judgment is reversed and the cause remanded. All concur.