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was decided to postpone Fuller's inspection STATE V. KENDRICKS. (No. 23844.) of the shop until the following morning.

Fuller and Shorty remained in defendant's (Supreme Court of Missouri, Division No. 2. Feb. 23, 1923.)

room all night, and defendant went out to

get excused from his Pullman run. 1. Larceny Om61-Evidence held to support The next morning Fuller and defendant conviction.

drove to a bank in a taxicab, and Fuller In a prosecution for larceny from the per- there secured some money with which to son, evidence held sufficient to support a con- make a payment on the purchase price of viction.

defendant's shop, if it suited him. Shorty 2. Criminal law em 1160—Approved verdict not stayed in the room. What occurred after disturbed.

Fuller and defendant returned to the room In a prosecution for larceny from the per- is best shown by quoting Fuller's testimony son, the question of weight of evidence was for as follows: the jury, and where its verdict has met the

"Q. Just tell us when you got into the room approval of the trial court, it is conclusive, in what was said and done between you? A. the absence of error.

Well, when we got back we goes up in the 3. Larceny Ow70(1)-Instruction held to cover room. Well, I went in first, and Kendricks law of case.

he kind of followed in behind me, so he closed In a prosecution for larceny from the per- the door. As soon as we gets in the door I son, instruction that if it were found that de- turn to pull my overcoat off, and I got my over. fendant feloniously stole from the person of i coat kind of like that (illustrating), down over the prosecuting witness money of the value of my shoulder, and my money was sticking up $30 or more, with intent fraudulently to con- something like that (illustrating), and then vert it to his own use and deprive the owner Kendricks says, 'We've got to have this monthereof without the owner's consent, defendant ey,' and this little fellow, he was behind me, should be found guilty, and if it did not so he says, 'Yes, hand it over.' I says to Kenfind, to acquit, and properly defining “larceny" dricks, My God! fellow, don't take my money and "feloniously,” and covering presumption of that way. I am a stranger here.'

He says, innocence, and weight to be given testimony, 'Oh, you need not worry; you will be cared held to cover all law of the case.

for.' He taken this money, and this little fel

low say, "You better not make any cry either.' Appeal from St. Louis Circuit Court; He was in behind. Moses Hartmann, Judge.

"Q. Who took the money? A. This fellow

Kendricks taken the money. William Kendricks was convicted of lar "Q. He took the money out of your pocket, ceny, and he appeals. Affirmed.

did he? A. He took the money out of my John R. McCarthy, of St. Louis, for ap

pocket. pellant.

"Q. What did the other fellow say? A. He Jesse W. Barrett, Atty. Gen., and R. W. said, You better not make any outcry.' Then,

so when they did that this fellow Kendricks Otto, Asst. Atty. Gen., for the State.

pulled out a note and says, 'Sign this note here.'

"Q. This man Kendricks said that? A. Yes, DAVID E. BLAIR, P. J. Convicted of sir. He pulled out the note on the table. As larceny from the person and sentenced to sowas they did that I didn't know what to imprisonment in the penitentiary for two do. I was scared of this fellow behind me. I years, defendant has appealed.

couldn't see behind me, and I didn't know what J. P. Fuller, the prosecuting witness, Wil- he had. I was scared to make any holler, and liam Kendricks, the defendant, and a third he says 'Come on downstairs,' and this felman, known in the record as “Shorty,” were low kept threatening me, says, 'Don't you make

no noise.' together in defendant's room at 3516 Laclede

"Q. Who went downstairs first? A. This avenue in the city of St. Louis, on the fellow Kendricks was in front, and the other morning of January 13, 1921, when the fellow behind me. They come down and walked alleged larceny occurred. Fuller testified across the street until we got to the alley, that he came to St. Louis from Detroit about and as soon as we got to the alley this fellow five days previously and had been looking Kendricks stepped back and says, 'Beat it down around to purchase a pressing establishment. through the alley.' So I didn't know nothing On the afternoon of January 12, 1921, he to do but go and look for an officer, and I lookmet defendant on Pine street, near Channing ed around about five minutes and couldn't find avenue, where an acquaintance was quickly no officer, and I went to the police station and made, and defendant informed Fuller that

reported it. he had a pressing establishment which he A. They taken about $515.”

"Q. How much money did they get from you? would sell. The business was not paying him, he said, because he was away so much. The landlady at 3516 Laclede avenue idenAt this time Shorty joined Fuller and de- tified defendant as the man who was at her fendant, and the three went to defendant's rooming house with Fuller. The defendant room at the above address to talk the mat- was arrested within a short time after the ter over. As it was then growing late, iti money was claimed to have been taken from

W

I says,

ey. He beat us out of all we had. So I says: lasts, luck is bound to come," although not

(248 S.W.) Fuller. Only a small amount of money (de- ; says, 'As long as my money lasts luck is bound fendant said $2.50) was found on his person to come.' He says, "The only reason we didn't by the officers. The oficer testified that win last night, our money wasn't long enough.' defendant at first denied knowing Fuller at So we go back to 3516 Lacede, and we gets all, and that it was only after being con

on our knees shooting craps, and we shot there fronted with and identified by Mrs. Smith, $25 and $50 and doubling it; so Shorty won all

about an hour, and finally we were sbooting his landlady, that he acknowledged knowing the money, and when Fuller got broke Fuller Fuller, and then stated that Fuller lost his tells Shorty, he says, 'Well, I got some more money "shooting craps." Shorty evidently money; loan me $25, and I will write you a disappeared from the scene as quickly and note I owe you and I will pay it to you.' So mysteriously as he entered it.

Fuller wrote him a note, says "This is to cerDefendant denied taking Fuller's money, tify that I owe you $25.'

So after he and attempted to show that Fuller lost his lost that $25 Shorty says, 'Well, I'm going; money in a gambling game to Shorty and come on, let's go and have a drink.' So we at the same time defendant lost his money soft drink place at Theresa and Laclede, and

goes on downstairs, and we went to go in this also. He testified that he first became ac Fuller says, 'I don't want nothing to drink. quainted with Fuller at England, Ark., I'm broke now; I want some money.' Shorty where Fuller ran a little pressing shop and says, I'm going in here and get something to a "crap game,” and that he shot craps at drink,' and he went in, and Fuller and I went Fuller's place once or twice. After meeting down to Channing, and that's where I left FulFuller on Jannary 12th and renewing their ler; and that afternoon I was arrested. acquaintance, they met Shorty, and he told "Q. At the time you were arrested, how much them he had been in a crap game and had money did you have on you? A. I had two and

a half I borrowed from Johnny Wright whilst made a little money. Defendant's story

I was out to his house. from that point appears from his testimony,

"Q. Now, at the time the officer arrested as follows:

you, what did you tell the officer, and what "I says, 'What did you do?' He says, 'I did he say to you? A. He come in, and he made a little money.' So we got talking about asked for Ir. Wright first. So I was there, that, and he says, 'We'll bave a little crap game and be says, "That you Kendricks?' now if you don't mind; we'll play a little and 'Yes, sir.' 'You been shooting them dice again?' see who is luckiest.' I say, 'All right, come I says, 'Yes, a little bit.' That's all I says to on and go on over to my room. At first Full-him. He says, 'Well, come on.' And he locked er says, 'Where can we go? Let's go to a me up. club.' I says, 'Let's go to my room. It is rignt "Q. Did you at any time take any money out here.' So we went to my room, 3516 Laclede, of this man's pocket? A. No, sir, about 5:30 in the afternoon.

So we started "Q. Did you at any time threaten him in any shooting dice. We had a pair of red dice. We manner in taking any money from him? A. shot dice along, seesawed along; Fuller and No, sir." myself were both winner; I was about $70 or $80 winner, and Fuller was about that much

The taxicab driver, Sam Reese, corrobowinner. And along about 9 o'clock Shorty rated defendant in his testimony that Fuller breaks me and broke Fuller; we lost our mon

said in the taxicab, “As long as my money Well, we're broke.' Fuller says, 'Well, if

in the identical words. The taxicab driver you wait until tomorrow morning I'll get some money; give me chance to get even.'

also testified that he found a pair of gloves "Q. Who says that? A. That's what Fuller in his car after Fuller and defendant left said. So Shorty says, 'If I don't go away I it, and took said gloves up to defendant's will.' He says, 'Well, don't go away, I'll stay room and "heard them popping dice.” In reup bere with you, and we'll play cards and en-buttal Mrs. Smith testified that the taxicab tertain you. He says, 'All right.' He asked driver did not go up to defendant's room, me where was I going. I says I'm going down 1. Errors of various sorts are charged in to a friend of mine's bouse.' I had an engage-| the motions for new trial and in arrest of ment to a whist party, and I went out to the friend's party, and I played whist all night. judgment, but a reading of the record is We all quit playing about 2 o'clock, so I just sufficient to show that the charges are not stayed there all night with some friends of well founded. In his assignment of errors mine, and the next morning I come out to in his brief, plaintiff urges error only in the where they were, and I borrowed $15 that night giving of instructions and failure to instruct so I could get in the game next morning to get on all the law, and because the verdict is even. So next morning before we started the the result of bias and prejudice on the game Fuller says 'Well, come on and go and call

part of the jury and against the weight of a machine, and we will go down so I can get the evidence. These assignments will be some money, and we will come back and play.' So I says, 'All right," and I went downstairs

separately noticed.

Numerous complaints are made in the moand called a machine, and the machine come and blowed, and I hollered out the window and tion for new trial concerning rulings of the says, 'We'll be right down,' and we come down trial court on the admission of evidence. and went in the machine and went to the bank We have carefully read the record and find and he went'in and got some money, and be such assignments in the motion for new

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trial utterly groundless, and, since appellant, tion. The trial court told the jury, in subhas not noticed them in his brief, we will stance, that if it found that defendant unlaw. not notice them further.

fully and feloniously did steal, take, and Complaint is made of improper argument carry away from the person of the prosecutby counsel for the state. This point was ing witness money of said prosecuting witalso passed in the brief without mention. ness of the value of $30 or more, with intent An objection was made and sustained to the fraudulently to convert the same to his only remark which can be deemed improper. own use and permanently to deprive the The other objections are entirely without owner thereof, without the owner's consent, merit, for the reason that counsel was it should find defendant guilty of larceny confining his argument almost to the exact from the person and assess his punishment, words of the testimony. No good reason ap- etc., and, if it did not so find the facts to pears for further discussing this point. be, to acquit the defendant. The defense

[1] The appellant contends that there is of defendant was taken care of in the words not sufficient evidence to support the ver- "and unless you so find the facts to be, you dict. We think the testimony on the part will acquit the defendant." of the state is amply sufficient to make a The remainder of the charge given by the case of larceny from the person. Fuller court is equally unassailable. It properly had over $500 in money in his pocket, and defined “larceny" and "feloniously;" told it was taken out of his pocket by appellant the jury the information was a mere formal before his eyes. He was then escorted to an charge; that defendant was presumed to alley and told to "beat it down through the be innocent until his guilt was established alley.” All the essential elements of the by the evidence beyond a reasonable doubt, crime were shown. Appellant does not men- and defined reasonable doubt. The charge tion this contention in his brief. It is clear. also properly laid down the rules to guide ly without merit.

the jury in determining the weight and [2] 11. Appellant contends in his brief credit to be given to the testimony of the that the verdict was the result of bias and various witnesses. It concluded by telling prejudice on the part of the jury. Unless the jury that, while the argument of counsel the fact that the jury believed the testi- is for the purpose of aiding the jury in armony of the prosecuting witness and disbe. riving at a proper verdict by reviewing the lieved that of defendant and assessed against defendant the lowest punishment provided evidence and showing its application to the by law be taken as proof of bias and preju- issues, yet the jury must be guided in its dice, there is not the slightest evidence deliberations by the evidence and the in of bias or prejudice in the entire record. structions of the court. No just complaint Of course, so to contend would be utter non can be made of any of the instructions.

The jury had the right to believe The cases cited by appellant are to the the prosecuting witness, and it evidently did effect that it is error to refuse an instrucSo. The same considerations rule adversely tion in the converse when requested by deto the appellant's contention that the verdict fendant, as in State v. Cantrell, 290 Mo. 232, was against the weight of the evidence. 234 S. W. 800, or that it is error to fail This was for the jury. Its verdict has met to instruct on all the law of the case, for the approval of the trial court, and is con- example, where the charge is grand larceny clusive in the absence of error.

and there is some evidence to show the de[3] III. This brings us to the final con- fendant guilty of petit larceny, and no intention of appellant—the only point he has struction on petit larceny has been given. briefed at all-that the trial court erred in The cases cited in no way support the congiving improper instructions to the jury and tention of appellant. The court fully infailed to instruct on all the law of the case. structed on all the law of the case. DeAs we understand it, the point which appel- fendant offered no instruction embodying lant attempts to make is that the trial court the effect of the loss of the money by Fuller should have given an instruction telling the through a gambling transaction, nor did jury that, if the prosecuting witness par- he request the court to give an instruction ticipated in a game of craps and in that way on that subject. lost his money, the jury should acquit de The judgment is affirmed. fendant. Defendant asked no such instruc All concur.

sense.

(248 S.W.)

from interstate commerce, the act is not thereSTOUFFER V. CRAWFORD et al. (ore invalid, but the sole effect is to prevent the (No. 22706.)

taxation of such incoine, (Supreme Court of Missouri, Division No. 1.

6. Constitutional law 229(3)-Taxation Jan, 22, 1923. Motion to Transfer to Court

Cam54-Basing valuation for corporations on in Banc Overruled March 5, 1923.)

date different than date used for individuals

held not an "inequality" under the Fourteenth 1. Constitutional law 190—Taxation 54

Amendment. -Statute carrying forward provisions of prior The selection for purposes of the income statutes not invalid as retrospective.

tax of one date for the valuation of the propThe Income Tax Act of 1919, amending lerty for individuals under Rev. St. 1919, $ Laws 1917, p. 524, providing for taxing in: 13110, and the selection of another date, six comes for the whole year of 1919, though the months previous, under section 13112, for the act did not go into effect until August 7, 1919, valuation of property of corporations, does not in so far as it carried forward the provisions of itself disclose an inequality under the Fourof the amended act, was not invalid as retro teenth Amendment, there being do conclusive spective.

presumption that properties of equal value

would be valued differently at the different 2. Constitutional law 190_Statuto basing dates named. rate for income tax on valuation on a date

(Ed. Note.--For other definitions see Words prior to passage, the rates not being increased

and Phrases, Inequality.) till after passage, held not invalid as retro. spective.

7. Constitutional law O 229 (3)-Taxation The Income Tax Act of 1919, amending 54-Separate classification of resident and Laws 1917, p. 524, providing for an increase nonrosident corporations held reasonable and in rates, and that January 1, 1919, should be not an "unequal application of the laws." the date used as a basis to determine the The distinction in Income Tax Act 1919, gain or loss by corporations, although such between resident and nonresident corporations, date antedated the taking effect of the statute, furnishes a reasonable basis for classification keld not retrospective because such value was for purposes of taxation, and is not “an unthe basis of the previous existing statute and equal application of the laws," prohibited by a mere increase in the rate of taxes during the state and federal Constitutions. last five months of the year does not affect the validity of the annual basis of valuation. 8. Constitutional law Cam48-Income Tax Act

upheld, where susceptible of constitutional 3. Statutes 49-The fact that the amount

construction. of taxes to be paid under Income Tax Act

The contention that Rev. St. 1919, 8 13111, was difficult to compute held not to invalls denies to persons “under guardianship and esdate statute.

tates held in trust” the same exemptions from The Income Tax Act of 1919, amending the income tax on account of dependents as Laws 1917, p. 524, providing for a change in is given to other persons, and that therefore the rate after August 7, 1919, is not invalid the income tax, is unconstitutional, cannot be because there is no way to ascertain the sustained, in view of the fact that the statute amount of income falling under the act of may be construed to permit the same exemp1917, and the amount coming under the rate of tions to persons under guardianship as to oththe 1919 act, this objection presenting merely ers, and the construction contended for, if the difficulty to be met in computing, assessing, unconstitutional, would be rejected, and the and collecting the tax, and not affecting the construction to which the objection does not validity thereof.

apply would be adopted. 4. Constitutional law m42-That the Income 9. Taxation m54-Penalizing nonresidents Tax Act was discriminatory does not give failing to file return under Income Tax Act right to attack constitutionality to one not held a reasonable method to secure filing of affected.

returns. Plaintiff could not enjoin the assessment The provisions of the Income Tax Act of and collection of taxes under the Income Tax 1919, amending Laws 1917, p. 524, denying Act of 1919, amending Laws 1917, p. 524, on family exemptions to nonresidents, who fail to the ground that the act was discriminatory, file the required return, is justified because where he was in no way affected by such dis- nonresidents are not in the jurisdiction, and criminations, and, although the suit was brought this furnishes a proper basis for a difference in behalf of plaintiff “and all who will join him in the means used to secure the filing of such therein," pone joined, hence the right to ques- return. tion the constitutionality must be founded on plaintiff's own situation,

10. Constitutional law 229(2)-Taxation

w 194-Exempting insurance companies pay. 5. Statutes 64(8)-That cortain provisions ing gross income taxes in lieu of all other of the income Tax Act taxed income derived taxes from provisions of the income tax from interstate commerce does not invalidate held not unconstitutional discrimination. entire act, but merely prevents taxation of The fact that the income derived from the such income.

investment of insurance corporations is exempt Even though certain provisions of the In- from the provisions of the Income Tax Act come Tax Act of 1919, amending Laws 1917, of 1919, amending Laws 1917, p. 524, does not p. 524, taxes income of nonresidents derived I constitute an unconstitutional discrimination

Crow For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

against other corporations and individuals, in the year 1919 to defendant Crawford as such view of the fact that insurance companies are assessor, upon the forms provided by defendtaxed separately on their gross incomes, in lieu ant Crawford for the purpose of taxation unof all other taxes, and the exemption applies der said pretended statutes, and that defendant solely to companies so taxed.

Crawford is proposing and planning to assess Graves, P. J., dissenting in part.

the said income for the year 1919 of plaintiff

for taxation in the manner and pursuant to Appeal from Circuit Court, Buchanan the provisions of a pretended statute of the County ; Lawrence A. Vories, Judge.

state of Missouri entitled 'An act providing for

the assessment, levying, collecting, and paying Suit for injunction by Joseph W. Stouffer of income tax, approved April 12, 1917, and against John M. Crawford and others. De appearing at pages 524 to 538, inclusive, of the murrer to the petition was sustained, and Session Laws of Missouri for 1917, and in the judgment rendered for defendants, and plain- manner and pursuant to the provisions of a till appeals. Affirmed.

pretended statute of the state of Missouri

amending said foregoing statute and repealing William M. Morton, of St. Joseph, for ap- sundry sections thereof and enacting new secpellant.

tions, approved May 6, 1919, and appearing Jesse W. Barrett, Atty. Gen., and Merrill on pages 718 to 721, inclusive, of the Session E. Otis, Asst. Atty. Gen., for respondents.

Laws of Missouri for 1919, and defendant

Crawford states that, upon the completion by JAMES T. BLAIR, J. This suit was

him of said assessment, he will certify the brought to enjoin the assessor, county clerk, county clerk of said county, and, unless re

results thereof to his codefendant Ferril as and collector of Buchanan county from pro- strained by the judgment of this court, defendceeding to perform their respective duties ant Crawford will carry out his plan aforesaid under the Income Tax Act (Laws 1919, p. and will assess against this plaintiff a tax up718). The trial court sustained a demurrer on his said income under said pretended statto the petition, appellant refused to plead ute, and will certify the result of his said asfurther, judgment was rendered accordingly, sessment to his codefendant Ferril in bis caand this appeal followed. After numerous pacity as county clerk of said county. amendments, the petition finally assumed the

"And plaintiff further alleges that defendant following form:

Crawford is preparing to assess and declares

that he will assess within the time prescribed "For amended cause of action, plaintiff states by and under and by virtue of said pretended that he is a resident of Buchanan county, in statutes a tax against plaintiff's said income for the state of Missouri, and that he is the owner the year 1920, and having done that he will of property real and personal in said county certify the results of his said assessment and of property situate outside of the state of against plaintiff's income for the year 1920 to Missouri, from which and from the sale of his codefendant Ferril as county clerk of said property acquired by bim prior to July 1, 1917, county and this, plaintiff alleges said Crawhe derived during the calendar year 1919, an ford will do, unless restrained and enjoined by income in excess of all exemptions and deduc- this court from so doing. tions allowed therefrom by the pretended stat "And plaintiff alleges that defendant Ferril utes of the state of Missouri, hereinafter men- proposes and is planning to compute the taxes tioned, and that income already received by against plaintiff's said income for the year 1919, him from said properties and from the sale of claiming to act in so doing under the authority property acquired by him prior to July 1, 1917, and pursuant to the provisions of the aforeduring the calendar year 1920, with the income mentioned pretended statutes of the state of he will receive therefrom during the calendar Missouri, upon the receipt from his codefendyear 1920 will exceed all exemptions and de- ant Crawford of the results of defendant Crawductions allowable therefrom by said pretend- ford's assessment against plaintiff's income for ed statutes in the assessment and collection of the year 1919 certified to him pursuant to said the income tax thereon under said pretended pretended statutes, and defendant Ferril furstatutes, and that he brings this suit on behalf ther is proposing and planning and states that of himself and all others similarly situated who he will enter upon a tax book which has been may join him herein; that said defendant, John provided for that purpose, a tax against the M. Crawford, is the duly elected, qualified, and said income for the year 1919 of plaintiff, and acting county assessor of the county of Bu- that he will deliver said book to his codefendchanan aforesaid, under a term of office which ant Srite, the county collector of Buchanan will expire June 1, 1921; that the said de- county aforesaid, for the collection of said tax fendant, Artemas Ferril, is the duly elected, upen plaintiff's income for the year 1919, so qualified, and acting county clerk of the county assessed, levied, computed, and extended of Buchanan aforesaid, under a term of office against this plaintiff. which will expire December 31, 1921, and that “And defendant Ferril is preparing to and dethe said defendant John Porter Srite is the clares that he will compute and extend upon a duly electea, qualified, and acting collector of tax book under the provisions of said presaid county of Buchanan aforesaid, under a tended statutes a tax against plaintiff's income term of office which will expire after the year for the year 1920, upon the receipt from his 1921.

codefendant Crawford of the results of said "That defendant Crawford, claiming to act Crawford's assessment of plaintiff's said inby virtue and under authority of his office as come for the year 1920, and that he will deliver assessor, is demanding of this plaintiff that said tax book with a tax computed and enplaintiff make a return of his said income for tered therein against plaintiff's income for the

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