State v. Winer

172 S.W. 355, 263 Mo. 356, 1915 Mo. LEXIS 158

• Court: Supreme Court of Missouri
• Decided: January 4, 1915
• Status: Published

Opinion

WALKER, P. J.

The appellant was charged in an information filed by the prosecuting attorney of Scott county with having received stolen property in violation of section 4554, Revised Statutes 1909. Upon a trial before a jury he was convicted and his punishment assessed at two years’ imprisonment in the penitentiary. From this sentence he appealed to this court, and secured a stay of execution pending the determination of the case here, by giving a bail bond as required by the trial court.

The Attorney-General admits that there was no proof of the incorporation of the railroad from which the goods were' charged to have been stolen. This failure of proof is reversible error (State v. Henschel, 250 Mo. l. c. 269; State v. Jones, 168 Mo. l. c. 402) and it is not deemed necessary to incumber the record with a statement of the facts.

It is also admitted by the Attorney-General that there was no evidence that the goods alleged to have been received as stolen property by appellant were shown to have been in the possession of the railroad company from which they were charged' to have .been stolen. This is also reversible error, because it is necessary to prove a larceny to sustain a charge of having received stolen property. [State v. Creeley, 254 Mo. l. c. 391; State v. Smith, 37 Mo. 58; State v. Woodson, 175 Mo. App. l. c. 397.]

The errors noted necessitate a reversal, and while the absence of proof of the larceny of the goods is alone fatal to a conviction, we find upon a review of the entire testimony that it is indicative of guilt. Under this state of facts it becomes our duty (Sec. 5290, R. S. 1909; State v. O’Connor, 58 Mo. App. l. c. 459) to not only reverse but to remand this case that the absent evidence may, if possible, be supplied at another .trial. It is so ordered.

Brown, J., concurs; Paris, J.t not sitting.