State v. Estes

• Decision Date: 18 February 1908
• Citation: 107 S.W. 1059,209 Mo. 288
• Parties: STATE v. ESTES et al.
• Court: Missouri Supreme Court

107 S.W. 1059

209 Mo. 288

STATE v. ESTES et al.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

1. LARCENY — EVIDENCE.

In a prosecution for chicken theft in the nighttime, based on circumstantial evidence, evidence held to establish the corpus delicti and the identity of defendants as the thieves.

2. CRIMINAL LAW — NEW TRIAL — GROUNDS — NEWLY DISCOVERED EVIDENCE.

To authorize a new trial on the ground of newly discovered evidence, it must appear that it has come to the knowledge of the applicant since the trial, that it was not owing to the want of diligence that it did not come sooner, that it is so material that it would probably produce a different result if a new trial were granted, that it is not cumulative, that the affidavit of the witness himself should be produced or his absence accounted for, and that the object of the testimony is not merely to impeach the character or credit of a witness.

3. SAME.

In a prosecution for chicken theft, a witness testified that he walked part way home with defendant at 10 o'clock on the evening of the theft, and that he met him the next morning with several other persons and remarked to defendant that he looked sleepy, and that the defendant replied that he and his codefendant had gone to Dick Johnson's. The defendant testified that he did not say that he went to Dick Johnson's, but admitted that he was there with the other parties. Held, that newly discovered evidence that two of the persons present at the alleged conversation would testify that they did not hear such remarks was only cumulative and tending to impeach the witness, and that, moreover, defendant, having himself testified that he was with the other witnesses, made no effort to subpœna them, though he knew that the witness would testify that he looked sleepy, and hence was no ground for a new trial, where the evidence would not probably change the result.

Appeal from Circuit Court, Boone County; E. W. Hinton, Special Judge.

Richard Estes and Buck Johnson were convicted of chicken theft, and they appeal. Affirmed.

Gillespy & Conley, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

At the June term, 1906, of the circuit court of Boone county, the grand jury returned an indictment against the defendants, charging them with stealing 50 chickens of the value of $25, on the night of April 28, 1906, the property of one Henry Baumgartner, from the messuage of the said Henry Baumgartner. At the October term, 1906, the defendants were tried and convicted and the punishment of each assessed at a fine of $25. After ineffectual motions for a new trial and in arrest of judgment, the defendants have appealed to this court.

The evidence on the part of the state tended to prove that Henry Baumgartner, the prosecuting witness, was a farmer, and living 3 miles east of Columbia in Boone county, and the defendants Estes and Johnson lived with each other about 2½ miles east of Baumgartner. Within a half a mile of where Estes and Johnson lived there was a country store, owned by Mr. Finley, in which the post office was kept, which was known as "Harg." At that time Finley was buying poultry and shipping it to Columbia. About 7 miles from the home of the defendants the town of Millersburg, in Callaway county, was situated, on the road from Columbia to Fulton. On Sunday, the 29th of April, 1906, Baumgartner's wife went to her henhouse situated within a messuage about the usual time in the afternoon and found no eggs, although she had been in the habit of getting about 40 eggs every day. Early Monday morning Baumgartner and wife went to the chickenhouse, where the chickens roosted, and found only 35 or 40 chickens left and 50 or 60 of their chickens gone. The stolen chickens were barred Plymouth Rocks, one hen lighter in color and larger than the others, and had a dark streak around her neck. The chickens so missed were worth about $25 or $30. About two weeks after the disappearance of his chickens Baumgartner met the defendant Richard Estes on the street in Columbia, and defendant Estes asked Baumgartner if he had heard the story that was going around about defendant stealing the chickens. Baumgartner admitted that he had, thereupon Estes said he had not done anything of the kind and wanted the talk stopped. Later on that same day defendant Estes came to see Baumgartner again, and inquired when he missed the chickens, and said that he (Estes) knew when they were taken; that they were taken on the 28th of April, and sold on the 5th of May, and then correctly described the stolen chickens. He said further: "I know all about it, but I did not get your chickens. I told Buck Johnson on the way to Millersburg as soon as Henry Baumgartner finds out that we sold chickens in Millersburg he will be on you." Estes said that the chickens that he sold were nice barred Plymouth Rock hens, except the light hen with the streak around her neck. He further said that he was paying defendant Johnson $14 per month, and had agreed to pay him in chickens. On the same day Baumgartner met defendant Johnson on the street, and he also began a conversation in regard to the chickens, and he inquired if Baumgartner had heard that Gillespy was telling it down at Millersburg that they stole Baumgartner's chickens, and he told him he had. Defendant Johnson then told Baumgartner that Estes would be in and see him that evening, and not to do anything until Estes came. He further said that his mother tried to get him not to go down to work for Estes, fearing he would get into trouble, and he did not want his father and mother to know anything about this. In conclusion he said: "We will make it all right with you if we can. You will wait on us, will you?" On Saturday, the 5th of May, 1906, these two defendants drove a wagon from their residence some 7 miles to Millersburg, and stopped at the store of Waters & Coons in that village, reaching there about sunup, and a clerk named Selby came out to see what they wanted, and the defendant Johnson asked if the firm would buy any chickens. When told that they would, defendant sold him between 40 and 50 barred Plymouth Rock chickens at 8 cents per pound. Three of the chickens were darker than the rest, and one of the hens had a streak around her neck. Defendant Johnson said they were going to Fulton to take these chickens to his mother, but as it was raining he did not want to go in the mud. A check was written out in payment of the chickens and given to Johnson. After the clerk Selby had left the store defendant Estes bought a nickel's worth of tobacco from Mr. Coons, one of the firm, and cashed this check in payment for the same. Johnson stated that he would give this money to his mother, and then he and Estes drove back in the direction of their home in Boone county. These chickens were sold by Waters and Coons and shipped away before they had heard of the larceny. Fulton is about 12 miles east of Millersburg. The defendant Johnson had a conversation with C. C. Gillespy, in which he said he did not want Gillespy to say anything more about this chicken business, whereupon Gillespy said it was public talk in Millersburg, whereupon Johnson said he bet a dollar with Estes that it would not make any trouble if they took these chickens to Millersburg and that Estes won the bet. This conversation was on the Saturday that the two defendants were arrested.

On the part of the defendants the evidence tended to show that they had purchased a mixed lot of chickens about the 2d or 3d of March, when they moved to the farm where they were living, some of which were Plymouth Rocks, from one James Finley, who had previously lived on the farm to which they moved. Matt Turner, an uncle of the defendant Estes, testified there were 35 chickens in the lot purchased by Estes of Finley. William Mitchell also testified that he sold defendant Estes two dozen buff Plymouth Rocks the spring that he moved onto the place, and William Johnson testified that he sold him a dozen barred Plymouth Rock hens. This witness was a brother of the defendant Buck Johnson. The father of the defendant Estes testified that the mother and sister of the defendant Estes let him have five dozen Plymouth Rocks to take with them when they moved to the Turner place in the spring of 1906. Defendant Estes further introduced evidence tending to show that he was at the Harg post office until 11 o'clock the Saturday night on which the chickens were stolen. Both defendants testified they were at Harg until 11 o'clock that night, when they went home, and did not steal the chickens in question. A week after that they started to Fulton, driving a wagon, and taking a lot of chickens to sell. At Millersburg they sold 52 chickens to Waters & Coons for $21.58, and Estes bought a nickel's worth of tobacco and cashed the check. They were going to Fulton to attend the stock sales, although they admitted that the stock sales would not begin until the Monday following. When they reached Millersburg they concluded to go no further on account of the rain, and so sold the chickens to Waters & Coons, and returned home. They admitted it began to rain on them 1 mile west of Millersburg, and that they had never before been to Fulton to attend stock sales. Reese Estes, the brother of Richard, testified that he stayed all night the night of April 28, 1906, with the defendants at their home. They were at the store at Harg until 11 o'clock, and then went to their place. He slept in an adjoining room to them. The door was open between the two rooms, and they went to bed about the same time. He talked to them after he had laid down. He found them there the next morning about 8 o'clock when he got up. Defendant Richard Estes testified that when he went to take charge of the Turner farm in March, 1906, he took about 135 or 140 chickens that he had gotten from different people, some from Mr. Mitchell and some from Mr. Perkins, Johnson, and...