State v. Barker

• Citation: 18 S.W.2d 19,322 Mo. 1173
• Parties: The State v. Robert Barker and Aubrey Lee Stout, Appellants
• Decision Date: 04 June 1929
• Court: United States State Supreme Court of Missouri

18 S.W.2d 19

322 Mo. 1173

The State v. Robert Barker and Aubrey Lee Stout, Appellants

Supreme Court of Missouri

June 4, 1929

Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge.

Affirmed.

H. K Bente and C. I. Bennington for appellant.

(1) It is the well-established principle of law that the State must prove the defendant guilty of the crime charged in the information, beyond a reasonable doubt and by substantial and competent evidence, before a conviction can be had. State v. Miller, 174 Mo.App. 181, 156 S.W. 758; State v Powell, 217 S.W. 35; State v. Guye, 252 S.W. 955; State v. Ramley, 257 S.W. 489. (2) The accused is presumed to be innocent of the crime charged against him, and the law presumes his innocence and not his guilt. This presumption attends defendant throughout the trial, and such presumptions follow him until the case is finally disposed of in court. It then follows that a verdict not supported by substantial testimony should not be permitted to stand. State v. Bowman, 294 Mo. 245, 243 S.W. 110; State v. Ramley, 237 S.W. 489; State v. Thompson, 238 S.W. 115; State v. Singleton, 243 S.W. 147, 294 Mo. 346; State v. Guye, 299 Mo. 348, 252 S.W. 955; State v. Fuller, 306 Mo. 484, 268 S.W. 45; State v. Fowler, 265 Mo. 177. (3) All the testimony offered by the State is nothing more than circumstantial evidence and does no more than raise a suspicion of the guilt of the defendants. Such evidence is insufficient to sustain a conviction. The evidence offered by the State in this case is not inconsistent with the theory: (a) That if Schupp lost some chickens they may have been stolen by some one other than appellants; (b) that the four sacks of chickens found on Highway Number 50 by Schupp and Lamm might have been tossed from some car other than the car in which defendants were riding; (c) that the four sacks contained twenty chickens of different kinds. Schupp only claimed to have lost twelve -- these chickens might have rightfully belonged to one of the defendants who lived on a farm south of Smithton, or defendants might have bought the twenty chickens from some one or might have raised them; (d) that the evidence offered by the State is that there were twenty chickens of mixed kinds in the four sacks -- Schupp testified that he kept only white plymouth rocks -- the state offered no evidence to prove ownership of all the twenty chickens. The twenty chickens were all mixed up in the four sacks -- this should be conclusive evidence that the four sacks of chickens were not stolen from the Schupp place. Every syllable of the State's testimony points to the innocence of the appellants. The court should have given appellants' instruction in the nature of a demurrer to the evidence at the close of the State's case since the evidence is wholly insufficient to sustain a conviction. State v. Archer, 6 S.W.2d 912. (4) The rule is well established that, where the evidence is entirely circumstantial, and all the facts testified to and circumstances shown may be accepted as true, and yet such facts and circumstances are not inconsistent with the innocence of the accused, the proof is not sufficient to support a verdict of guilty. State v. Counts, 234 Mo. 580; State v. Buckley, 309 Mo. 38, 274 S.W. 745; State v. Ruckman, 253 Mo. 487; State v. Adkins (Mo.), 222 S.W. 431; State v. Singleton, 294 Mo. 346, 243 S.W. 147; State v. Francis, 199 Mo. 617. (5) Instruction three given on behalf of the State told the jury that evidence was of two kinds, direct and circumstantial, and that a crime may be proven by circumstantial evidence as well as by direct evidence -- "but the facts and circumstances in evidence should be consistent with each other and with the guilt of the defendants, and inconsistent with any reasonable theory of defendants' innocence." Said instruction does not properly declare the law and is misleading and clearly a reversible error. State v. Archer, 6 S.W.2d 912. (6) The verdict of the jury is shown by the evidence to have been reached through passion and prejudice against defendants, by the extraneous and vicious remarks made by the two prosecuting attorneys, bringing into the case outside issues and inflammatory remarks, directed against defendants. State v. Dickson, 253 S.W. 746; State v. Hess, 240 Mo. 147; State v. Hance, 256 S.W. 534; State v. Stockton, 228 S.W. 1082.

Stratton Shartel, Attorney-General, and G. C. Weatherby, Assistant Attorney-General, for respondents.

(1) The evidence clearly supports the conviction of both defendants. State v. Standifer, 289 S.W. 857. (2) Instruction 3 is attacked upon the ground it does not correctly define circumstantial evidence and is vague and misleading. This instruction is a literal copy of an instruction approved in State v. Bauerle, 145 Mo. 16. (3) The alleged remarks of counsel must be preserved in the bill of exceptions. State v. Newman, 289 S.W. 833; State v. Braden, 295 S.W. 784.

Henwood, C. Davis and Cooley, CC., concur.

OPINION

HENWOOD

The defendants were jointly charged, in the Circuit Court of Pettis County, with stealing, in the nighttime twelve chickens, of the value of $ 12 from the messuage of Paul C. Schupp. The venue was changed to the Circuit Court of Saline County, where they were tried together, convicted, and sentenced to imprisonment in the penitentiary for five years, in accordance with the verdict of the jury. Their appeal brings the case here for review.

The State's evidence shows that Paul C. Schupp was a farmer living on State Highway No. 50, about six miles east of the city of Sedalia and one and one-half miles west of the town of Smithton, in Pettis County. His dwelling house was located about fifty yards north of the highway, and upon the same premises, and immediately surrounding his dwelling house, were a group of buildings, including his chicken house and barn. The dwelling house of W. E. Lamm was about thirty yards south of the highway and immediately opposite the premises of Schupp. Lamm and his wife and son were returning from Smithton in their Dodge coupe on July 22, 1927, between ten and eleven o'clock P. M., when they noticed an old Ford touring car headed east and standing on the south side of the highway about 120 yards east of Schupp's house. The front lights of the Ford car were "dimmed," and it had no license plate on the rear end and no tail light. They saw a man sitting in the car, wearing a blue shirt and a "light looking" cap. Soon after reaching his home, Lamm heard chickens squawking in the vicinity of Schupp's chicken house. He called his son, got his shot-gun, and he and his son crossed the highway and called Schupp. About the time Schupp joined them, they heard chickens squawking again in the vicinity of Schupp's meadow, east of his house. Shortly thereafter, they heard chickens squawking a third time in the vicinity of the Ford car, and then heard the slam of a car door in that direction. The Ford car started east on the highway, followed by Schupp, Lamm and his son in Lamm's Dodge coupe, and Mrs. Lamm telephoned to the sheriff's office at Sedalia. Lamm's son was driving the Dodge and both Schupp and Lamm were armed with loaded shot-guns. About three-quarters of a mile east, they overtook the Ford car and passed it. At the junction of the highway and the road leading southeast into Smithton, the Dodge was turned around and stopped, facing west, about a quarter of a mile east of the point where they passed the Ford car. Schupp and the elder Lamm got out of the Dodge, with their shot-guns, and shouted to the occupants of the Ford to stop, as the Ford approached, but it moved on with increased speed. The chase was renewed, and then the occupants of the Ford car threw out of their car four sacks of chickens, but kept on going. Three shots were fired in the direction of the Ford car and it was dirven to the side of the highway and brought to a stop. The defendants were in the Ford car, and the driver of that car, the defendant Stout, was identified as the man who was sitting in that car when the Lamm family observed it, standing on the side of the highway near their home and the home of Schupp, a short while before. Chicken feathers were found in the back part of the Ford car. The four sacks of chickens were picked up and taken to Schupp's chicken house, and Schupp and the elder Lamm started toward Sedalia, with the defendants, in the Ford car. About one mile west of their homes, they met the sheriff and he took charge of the defendants. An examination of the four sacks of chickens disclosed that there were twelve white plymouth rock hens in two of the sacks, and four black-barred plymouth rocks, two white leghorns, a black hen and an old white hen in the other two sacks. The two sacks containing the twelve white plymouth rock hens were "dry and cool, like they had been freshly put in." The other two sacks containing the other eight chickens were "damp and hot." Two of these chickens were dead, and the other six were "hot; in a stupor; about all in." The eighteen live chickens were turned loose in "one compartment" of Schupp's chicken house, separate and apart from his other chickens. The twelve white plymouth rock hens "went on back, to the back of the henhouse, like any other chickens would do." The other six chickens of mixed variety "couldn't do much; they were hot." They "seemed to be smothering." Mrs. Lamm and her son so testified, as to the condition of the chickens and the sacks, and as to the actions of...