State v. Thomas

• Citation: 300 S.W. 823,318 Mo. 605
• Decision Date: 12 December 1927
• Docket Number: 28369
• Parties: The State v. Robert Thomas, Appellant
• Court: United States State Supreme Court of Missouri

300 S.W. 823

318 Mo. 605

The State v. Robert Thomas, Appellant

No. 28369

Supreme Court of Missouri

December 12, 1927

Appeal from Carroll Circuit Court; Hon. John T. Morris Special Judge.

Affirmed.

William C. Reynolds, S. A. Handy and Ray W. Cummins for appellant.

(1) The evidence was insufficient to sustain a conviction. State v. Morney, 93 S.W. 1117; State v. Boswell, 133 S.W. 99; State v. Long, 278 Mo. 379; State v Bowman, 243 S.W. 110; State v. James, 113 S.W 232; State v. Lee, 182 S.W. 972; State v. Levikow, 192 S.W. 416; State v. Lawler, 130 Mo. 366; 1 Wharton, Criminal Law (9 Ed.) p. 932. (2) The State failed to prove larceny, for the reason that the property alleged to have been taken was not taken against the will of the alleged owner. State v. James, 113 S.W. 232; State v. Remley, 237 S.W. 489. (3) The statement of witness Johnson was prejudicial error. Sexton v. Lockwood, 207 S.W. 856; Hatch v. Bayless, 146 S.W. 842; Marshall v. Taylor, 153 S.W. 530; Thompson v. Keys-Marshall Bros. Livery, 113 S.W. 1128. (4) Instruction three did not properly define larceny. State v. Litteral, 70 S.W. 143; State v. Rhea, 147 S.W. 1096; State v. Weis, 219 S.W. 368; State v. Swearengin, 234 Mo. 549. (5) Instruction 7 is clearly erroneous. State v. Hersh, 296 S.W. 433.

North T. Gentry, Attorney-General, and David P. Janes, Assistant Attorney-General, for respondent.

(1) Defendant complains that error was committed in the refusal of the trial court to discharge the jury after witness Johnson had stated that defendant's companion, Portwood, was later caught and sent to the penitentiary. This was a purely voluntary statement made by the witness and was not in response to any question. The record shows that the jury was admonished to disregard this statement and pay it no consideration. (2) Defendant contends that the taking of the chickens was not without the owner's consent. Mrs. Groves does not deny ownership. On the question of consent, she testified that she had not given her consent to defendant or his companion to take any chickens from her premises on the night of this offense. The taking consequently was without such consent and without her knowledge, for she was at the home of a neighbor on this particular night. Her belated attempt to give defendant and his companion blanket authority to help themselves to her chickens, even in her absence, at two o'clock in the morning, cannot now avail defendant any relief. The State, and not Mrs. Groves, is the plaintiff in this case. The offense was completed the minute defendant and Portwood took the chickens. The court very properly overruled defendant's attempt to obtain his aunt's retroactive consent. State v. Remley, 237 S.W. 489.

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

OPINION

HIGBEE

The defendant was charged by information filed in the Circuit Court of Clay County, with having, on April 23, 1926, stolen certain domestic fowls, the personal property of Irene C. Groves, to-wit, seventeen grown chickens, in the night time, from the messuage of said Irene C. Groves. The information was filed on May 30, 1926, and was based on Section 3314, Revised Statutes 1919. The venue was changed to Carroll County, where the cause was tried to a jury on April 15, 1927, resulting in a verdict finding the defendant guilty and assessing his punishment at four years' imprisonment in the penitentiary. Defendant appealed.

Mrs. Groves owned and lived on a farm in Clay County, Missouri. She spent the night of April 22, 1926, with a neighbor, returning to her home about daylight on April 23. John Sevage lived across the road a little north of Mrs. Groves and about 250 yards distant from her house. It had been raining and there was a bad mudhole in the public road in front of Sevage's house. He was aroused about two A. M. that night by the roaring of an automobile engine and, looking out, saw a Ford touring car mired in the mudhole. He saw the car, running without lights, drive into Mrs. Groves's premises and in a few minutes heard chickens squawking. He telephoned his neighbor, Oscar Johnson, who lived a half mile south of him, and asked him to call the sheriff. Sevage took his shotgun and went to meet Johnson. They heard this car roaring and found it stuck again in the mudhole. The defendant, Robert Thomas, and Lemur Portwood were in the car. Sevage presented his gun and ordered them out of the car. Johnson had brought his revolver, and together they overpowered and arrested Thomas and Portwood after they had threatened to kill their captors. After about fifteen minutes Thomas and Portwood begged Sevage and Johnson to let them go. Thomas said it was the first time he had ever stolen any chickens, and whined that it would be a disgrace to his family. He said he would take the chickens back to Mrs. Groves if they would let him go and say nothing about it. He said: "You may send me to the penitentiary, but I'll get you some time." In a little while six other neighbors arrived on the scene. Portwood made his escape.

On the rear seat of the car was a chicken coop with fourteen live and three dead hens in it, Rhode Island Reds and Buff Leghorns. Mrs. Groves was the only one in the neighborhood who kept those breeds of chickens. After she returned to her house in the morning, Sevage, Johnson and the others showed her the chickens in the car. They traced the tracks made by Thomas's car from the mudhole into Mrs. Groves's premises, by the chicken yard north of her house, back to the mudhole. There were no other car tracks. They found the same kind of chicken feathers where the car had stopped in the back yard as they found in the car. The door to the chicken house was open, and the chickens seemed to be frightened. There were foot-prints through the back yard to the hen house. The chicken coop remained in the car until Mr. Clark, the sheriff, arrived. The car was then driven to Mrs. Groves's house, where Clark turned the chickens loose on her front lawn. They ran at once around the house to the chicken yard, a distance of about sixty yards, and mixed with the other chickens.

Thomas told officer Edgar Nall that he got the chickens from his aunt, Mrs. Groves. On cross-examination of the witness Sevage, it was developed that his chickens and meat had been stolen.

Mrs. Groves testified: I live a mile east of Linden, in Clay County, Missouri. On April 23, 1926, I had some Rhode Island Reds, some Buff Leghorns, some Brown Leghorns and a few Plymouth Rock chickens on my place. The defendant, Robert Thomas, is my nephew. I never gave my consent for him or Lemur Portwood to take any of my chickens. Neither of them ever had any interest in any chickens on my place. The chickens that were turned loose on my place by the sheriff on the morning of April 23, 1926, are still there.

On cross-examination: I do not know that they were my chickens. I did not miss any chickens. I did not see these chickens when they were turned loose; I was in my back pantry. I have seen the chickens that were brought there. I don't know whether they were my chickens, and could not say they were mine when they were throwed into my yard.

Redirect: I saw these chickens in the coop as I passed down the road. I never paid much attention, only I seen they were chickens the color of the chickens on my place. I haven't sold a chicken, and as far as I know they are still there. I never did count them to see if I had lost any of them.

When the sheriff arrested the defendant and Portwood, he found them armed. He said to Thomas: "You have taken a muddy time for it." Thomas said: "I did this time."

At the close of the State's case the court overruled a demurrer to the evidence. Mrs. Groves was then recalled by the defendant and being asked if she claimed the chickens returned to her house, answered: I did not know they was my chickens and if they had been and if he had got them it would have been perfectly all right.

The court sustained an objection to the latter part of the answer as not responsive to the question and directed the jury to disregard it. "Q. Did you file this complaint? A. I did not." The court sustained an objection to the question and answer, saying: "I don't think a person can stop the process of the law by failing to make complaint. It is the State that is interested and not the individual." By Mr. Handy: "If the owner of the property, who's ready to testify and has testified here that she made no objection to his taking the property " By the Court: "Are you proving by this witness that she was the owner of these chickens? Mr. Handy: "No sir. She still says she doesn't claim the ownership of the property." By the Court: "She didn't say that."

"Q. What did you say about the ownership? A. I said I did not claim those chickens. I don't know whether they were my chickens. Q. If they had been, it would have been all right?

"By the Court: That is improper."

Exceptions were saved to these rulings.

Here appellant's counsel offered...