State v. Currier

Decision Date12 February 1910
Citation125 S.W. 461,225 Mo. 642
PartiesTHE STATE v. GEO. A. CURRIER and JOHN MOORE, Appellants
CourtMissouri Supreme Court

Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.

Affirmed.

R. S Hogan and Green & Green for appellants.

The indictment charges in the one count the wounding of four cattle and the killing of three: two separate and distinct offenses, the wounding a misdemeanor, the killing a felony. These two offenses could not be joined in the same indictment, even if separately stated in different counts but in no event could they be joined in the one count. State v. Nitch, 79 Mo.App. 99; State v Green, 24 Mo.App. 227; State v. Harrison, 62 Mo.App. 112. The evidence admitted under the charges in the indictment as to the wounding of cattle, was prejudicial to the defendants, was lodged in the minds of the jury, and this instruction would not cure the error of admitting same, or undo the wrong. State v. Minor, 193 Mo. 597; State v. Hopper, 71 Mo. 425; State v. Fredericks, 85 Mo. 145; State v. Thomas, 99 Mo. 235; State v. Bateman, 198 Mo. 222. The State, with a view of taking an undue advantage of defendants, purposely and intentionally refrained from endorsing the name of Ed Stites on the indictment, and withheld such name from the defendants for the purpose of springing him at the trial as a surprise on defendants; the testimony of said witness was not true and was a surprise to the defendants and by reason of the conduct as aforesaid of respondent, defendants were precluded and did not have the opportunity of showing the falsity of such testimony. Defendants knew nothing of this witness until the morning of the day of the trial, and did not know what he would testify to, or, in fact, whether he would be used as a witness, until he was placed on the witness stand; by reason of the situation, appellants, before the witness testified, had no knowledge upon which they could have based a motion to quash the indictment on the ground of surprise. State v. Barrington, 198 Mo. 70; State v. Henderson, 186 Mo. 473.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

(1) The indictment is based on Sec. 1987, R. S. 1899, and is sufficient, valid and properly charges the offense. State v. Grimes, 101 Mo. 188; State v. Woodward, 95 Mo. 129; State v. Goss, 74 Mo. 592. The motion to quash was properly overruled. It is a general rule of criminal pleading that the prosecutor is at liberty to charge in a single count, as a single offense, a single act or transaction in violation of law, although that act involves several similar violations of law with respect to several different persons. United States v. Scott, 74 F. 215; 1 Hale P. C. 531; 2 Hale P. C. 252; 2 Russ. Crimes, 127; 3 Chitty's Crim. Law, 959; Pointer v. United States, 151 U.S. 396; United States v. Simmons, 96 U.S. 360. (2) It was a matter largely within the discretion of the trial court as to the reopening of the case after same was closed and the witnesses discharged, and, unless it is conclusively shown that the trial court abused its judicial discretion, this court will not interfere. State v. Worten, 139 Mo. 533; State v. Reed, 137 Mo. 134; State v. Dunn, 179 Mo. 95. (3) Motion for new trial must be filed before judgment. This is mandatory. Sec. 2689, R. S. 1899; State v. Maddox, 153 Mo. 473; State v. Brooks, 92 Mo. 591; State v. Pritchett, 219 Mo. 704; State v. Rosenblatt, 185 Mo. 114; 1 Chitty's Crim. Law (5 Ed.), p. 663; Bishop's Crim. Pro. (1 Ed.), sec. 852. (4) This court cannot consider defendant's objection to the testimony of Stites on the ground that his name was not endorsed on the indictment, because such objection was not made in the trial court at the time; no objection was made to his testifying, and this objection, coming for the first time in the motion for a new trial, comes too late. State v. Smith, 137 Mo. 28; State v. Tate, 156 Mo. 130; Sec. 2517, R. S. 1899; State v. Pagles, 92 Mo. 300. The section of the statutes which requires, when an indictment shall be found by the grand jury, the names of all the material witnesses shall be endorsed thereon, specially provides that the State may introduce witnesses whose names are not so endorsed on the indictment. Sec. 2517, R. S. 1899; State v. Woodward, 182 Mo. 391; State v. Bailey, 190 Mo. 257; State v. Nettles, 153 Mo. 464; State v. Barrington, 198 Mo. 23. An objection to the testimony of witnesses on the ground that their names were not endorsed on the indictment cannot be raised for the first time on a motion for a new trial. State v. Johnson, 118 Mo. 491; State v. Runzi, 105 Mo.App. 319.

OPINION

BURGESS, J.

On the 11th day of February, 1909, the grand jury of Howell county returned into open court an indictment charging the defendants with feloniously, wilfully and maliciously shooting and killing three cattle, the property of George Rothwell, W. M. Ulrich and J. H. Soots. At the March term, 1909, of the circuit court of said county, the defendants filed a motion to quash the indictment, which motion was overruled, and they thereupon entered their plea of not guilty, and went to trial. They were found guilty of the offense charged, the jury assessing their punishment at a fine of fifty dollars each. Judgment and sentence were entered accordingly. Defendants thereafter filed motions for new trial and in arrest of judgment, which having been overruled, they appealed.

The defendants, as the evidence shows, were stockholders in a corporation owning a farm of 1600 acres in Howell county, and which was called the "Gregmore Fruit Farm." This farm was managed by one Herman Utterman, who, with his family, lived thereon. The defendants resided in the city of St. Louis, but went to the farm, stopping at the home of Mr. Utterman, on the Wednesday preceding Sunday the 11th of October, 1908, the date of the alleged offense, and stayed there until the following Monday.

Reports of firearms were heard by neighbors, between two and three o'clock on the afternoon of Sunday, October 11, 1908, the sound coming from the direction of the Gregmore Fruit Farm. That evening W. M. Ulrich discovered two of his cows in a maimed condition, and, upon examining them, found that they had been shot. Accompanying his cattle were two belonging to J. H. Soots which also were wounded and maimed in like manner. He picked out some of the shot imbedded in the flesh of the animals, the shot being of different sizes. On the following day two cattle were found dead from gunshot wounds on the Gregmore farm, one of which belonged to Ulrich, and the other to Soots. A few days later Mr. Soots found another one of his cattle lying dead on said farm, it having been killed in the same way. About seven other cattle, belonging to different parties, were found maimed from gunshot wounds on the Gregmore farm. Near where the dead cattle were found were a number of empty No. 12 cartridge shells, which were different from those commonly used by the people of the neighborhood, in that the paper part was red and the shells had more brass than those ordinarily used there. Where the dead cattle were found was about a half mile west of the main buildings on the Gregmore Fruit Farm.

Ed Stites, a witness for the State, testified that he was riding through the Gregmore farm on the afternoon of the Sunday in question, in search of a cow of his which had strayed away some months before, and that, between two and three o'clock of that afternoon, he saw the defendants shooting cattle on the farm; that he saw Moore shoot first, and that Moore then called to Currier, who was some distance away, to come and help him shoot; that Currier came up and began shooting; that the defendants fired about twenty-five times; that from the reports of the guns he thought one was a rifle and the other a shotgun. Upon cross-examination, the witness stated that he did not immediately tell anybody about what he saw, but that as soon as he learned whose cattle had been shot he told Mr. Ulrich about it; also, that just before the trial Ulrich or George Rothwell told him not to tell defendants' counsel anything he knew about the matter.

The evidence also showed that defendant Currier, on Monday evening, October 12, 1908, at the town of Olden, while eating supper at a hotel there, in discussing the stock law and the trespassing of stock in the yard of the hotel, said to the proprietor of the hotel: "Do them like we do; there was some cattle trespassing upon us, and we just took our guns and shot them." Two witnesses, H. C. Hopkins and John Keithly, testified as to this conversation and the remarks made by the said defendant, their testimony being substantially the same.

Theodore Boss testified for the State that he moved into a house on the Gregmore Fruit Farm on the Sunday in question; that the house he occupied was about two hundred yards from the main buildings on the farm; that about two o'clock that afternoon he went over to the house occupied by Mr. Utterman, and saw the defendants sitting under a shade tree in the yard; that he returned to his house and shot off an old cannon which he had there, and that between two and three o'clock, the same afternoon, he heard a number of shots fired west of where he lived, but that he did not know who fired them.

The defendants offered evidence to show that on Sunday, October 11, 1908, they were at the farm; that they ate breakfast with Utterman's family at about half-past eight o'clock that morning, and, after breakfast, went out for a ride on the farm, returning about eleven o'clock; that they had dinner about two o'clock, and remained about the house, visiting the barn and kennels, and sitting in the swing in the yard, all that afternoon, and were...

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