Bester v. State, 39458
| Decision Date | 17 January 1955 |
| Docket Number | No. 39458,39458 |
| Citation | 222 Miss. 706,77 So.2d 270 |
| Parties | Leander BESTER, alias Lee A. Bester, v. STATE. |
| Court | Mississippi Supreme Court |
William H. Stewart, Poplarville, for appellant.
J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.
Leander Bester, the appellant, was jointly indicted with Georgia Lee Fowler, at the April 1954 Term of the Circuit Court of Pearl River County on a charge of larceny of 67 sacks of tung nuts of the value of 80 cents per sack, and of the total value of $53.60, the personal property of W. M. McGuire. The case was tried at the April 1954 Term of the court, and the appellant was convicted and sentenced to imprisonment in the state penitentiary for a term of four years. From that judgement he prosecutes this appeal.
The testimony of the State's witnesses showed that W. M. McGuire was the owner of a 320-acre tung nut farm in the White Sand community of Pearl River County, which was inclosed by a fence and was subdivided by a cross fence. The tung nuts were harvested during the late fall and winter months of the year, and as an aid to the handling and marketing of the nuts, the nuts as they were gathered were placed in heavy sacks, usually made of jute, which were securely tied with durable strings.
On the morning of January 9, 1954, Jim Stanford, the manager of the McGuire farm, found that the gates on the road across the farm had been left unlocked, and there was a sack of tung nuts lying by the roadside near the inner gate. Upon further investigation he found that a quantity of sacked tung nuts was missing from the tung nut pile, a short distance from the inner gate. Stanford drove immediately to the Wade Tung Oil Company plant at Bogalusa, which was only a few miles away, to make inquiry about tung nuts received at the plant during the night. As he drove into the millyard, he observed a pile of sacked tung nuts on the ground just outside the office building near the scales where trucks were weighed. Stanford examined the sacks of tung nuts and found that they were tied with the treated strings of the kind used on the McGuire farm and that the sacks had black dots at the top which corresponded with the marks that he had used to identify sacks purchased for use on the McGuire farm. Stanford made inquiry at the office concerning the load of tung nuts which had been dumped on the ground just outside the office building; but the assistant manager, who had just arrived at the office, was unable to give any information about the tung nuts. Stanford then told the assistant manager that a quantity of sacked tung nuts was missing from the McGuire farm, and requested the assistant manager to 'call the law' when any one came to claim the tung nuts piled on the ground near the scales.
Later during the morning the appellant drove a truck loaded with tung nuts, sacked in burlap sacks, upon the scales of the Wade Tung Oil Company to be weighed and paid for at the prevailing market price; and while the truck was being weighed the appellant told the assistant manager of the plant that he had another truck load which he had brought to the scales the night before and had unloaded near the scales because there was no one at the office at that hour of the night to weigh them. After dumping the load of tung nuts which he then had on his truck on the large pile near the hulling room, about 200 feet from the office, the appellant returned to the scales, loaded the nuts which he had left there during the night upon his truck and had them weighed, and then drove the truck to the large pile in the center of the yard and unloaded them. The assistant manager paid the appellant by check for the two truck loads of tung nuts; and the assistant manager testified that while the appellant was in the office the appellant said, There were 71 sacks in the load which had been dumped outside the office during the night; and the sales ticket showed that the appellant was paid $76.17 for the lot.
Stanford returned to the Wade plant later during the day and found that the appellant had delivered another load of tung nuts to the plant during the morning and had told the plant manager that the pile of tung nuts on the ground near the scales were nuts that he had hauled during the night, and that the appellant had reloaded the tung nuts on his truck and had dumped them on the big pile near the hulling room. Stanford went with the mill foreman to the big pile and quickly identified the sacks of nuts which belonged to the McGuire farm.
Stanford testified that he was able to identify the sacks which belonged to the McGuire farm by the dark green strings with which they were tied and a black dot at the top of each sack. Some of the sacks were also marked on the inside with the letter 'M'. He identified 17 of the sacks by the black dots and the letter 'M', and approximately 50 sacks by the dark green strings.
Creel, the mill foreman, testified that Stanford had no difficulty in pointing out to him the sacks of tung nuts on the pile which came from the McGuire farm. Creel had seen the appellant unload the tung nuts on the big pile during morning; and Creel stated that the sacks which Stanford identified as sacks belonging to the McGuire farm were sacks found on that part of the pile where the appellant had dumped the two loads that he had brought to the mill. Stanford requested Creel to save the sacks for him, and Creel stated that he later delivered the sacks to the deputy sheriff, W. O. Moody.
W. O. Moody, the deputy sheriff who assisted Stanford in the investigation, testified that he made measurements of the tire tracks which were left by the pickup truck at the place where the nuts were loaded on the McGuire farm, and compared the measurements with the tires on the appellant's truck. The measurements and distinguishing peculiarities of the tire tracks corresponded with the measurements and distinguishing peculiarities which he observed on the tires of the appellant's truck. Moody stated...
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