State v. Kent

McMillian, judge.

This is an appeal from a judgment of conviction entered by the Circuit Court of the City of St. Louis on a jury verdict finding the defendant guilty of operating a motor vehicle without the owner’s consent. § 560.175(1), RSMo 1969, V.A.M.S.

To reverse his conviction defendant claims that the state failed to make a sub-missible case because the actual care, custody and control of the motor vehicle was in a third person at the time the vehicle was stolen. We are not persuaded by defendant’s allegation of error and accordingly affirm.

Henry Harris testified that he owned a 1964 brown, four-door Chevrolet automobile with license number KE2159. At about 11 P.M., on December 15, 1972, Harris discovered that his car was missing from the 7200 block of Anna Street in Ma-plewood, and he reported it immediately to the Maplewood Police. The next time he saw the car it was in the custody of the St. Louis Police. The ignition had been “punched,” the right rear fender was bent, the right rear tire had been replaced, and the license plates and floor mats were missing, but the defendant still identified it as his automobile. Harris also testified that he did not know Darrell Kent or Darrell McCafferty and that he did not give anyone by either name permission to operate his motor vehicle on December 20, 1972. In response to questions by the court, the witness stated that on December 15, 1972, he had given Vernon Ankton permission to use his car. The car had been stolen from the spot where Ankton had parked it after returning it.

Jessie Nash of the St. Louis Police Department stated that on December 20, 1972, at about 11:30 A.M., he and his partner stopped a 1964 brown Chevrolet automobile. Nash identified the driver as the defendant. The “serial plate,” or small metal plate on the door post where the serial number of the vehicle is recorded, was missing, and the officers arrested defendant for possession of a vehicle with the serial plate removed. The car was in working condition and was driven to the police station.

Robert Duffin, St. Louis police officer and Nash’s partner, also identified the driver of the car as the defendant in court. Ralph Woods of the Auto Theft Squad of the St. Louis Police Department testified that a hidden serial number on the frame of the car under the floorboard showed that the automobile in question did, in fact, belong to Henry Harris.

It is the law in Missouri that when an owner lends his automobile to another party, he returns the automobile, and it is later discovered missing and reported stolen, the testimony of the borrower is not a prerequisite to prove that the automobile was being operated by defendant at a later time without the owner’s permission. The owner has not relinquished the custody of his vehicle to the borrower. “His actions are entirely consistent with his retention of custody and control of his automobile and not with the idea that he had parted with custody and control.” State v. Morris, 460 S.W.2d 624, 627 (Mo.1972).

We hold that the facts of the instant case fall within the above-stated rule and we accordingly affirm.

Judgment affirmed.

SIMEONE, P. J., and GUNN, J., concur.