State v. Ashcraft

• Decision Date: 03 May 1938
• Docket Number: 35827
• Citation: 116 S.W.2d 128,342 Mo. 608
• Parties: The State v. Gordon Ashcraft, Appellant
• Court: Missouri Supreme Court

116 S.W.2d 128

342 Mo. 608

The State v. Gordon Ashcraft, Appellant

No. 35827

Supreme Court of Missouri

May 3, 1938

Appeal from Polk Circuit Court; Hon. C. H. Skinker, Judge.

Affirmed.

Everett Frieze for appellant.

(1) The evidence was not sufficient to take the cause to the jury under such decisions as follows, State v. Divorkin, 307 Mo. 494; State v. Falco, 51 S.W.2d 1031; State v. Berkowitz, 325 Mo. 526; State v Rudman, 327 Mo. 265. In the above cases the facts or one of the premises from which the deduction of guilt was made were proven by direct evidence. In the case under consideration there is no direct evidence connecting the defendant with the circumstances proven from which the deduction of guilt is made. Certainly under such decisions as: State v. Lockland, 136 Mo. 32; State v Simon, 57 S.W.2d 1062; State v. Stewart, 63 S.W.2d 210; State v. Jacobs, 133 Mo.App. 182. Strong suspicion of guilt is not sufficient to support a conviction of crime. State v. Kinnamon, 314 Mo. 662. (2) That the court over the objections and exceptions of the defendant erred in permitting the State to give evidence that two unidentified young men on the morning of December 29, 1936, sold 14.2 bushels of wheat to the Greene County Farmers Exchange without showing that the wheat sold was the wheat stolen from Davis and without any direct evidence connecting the defendant with the sale of the 14.2 bushels of wheat and in permitting the State to give in evidence the check given in payment for the wheat and made payable to "Don Clark" and in permitting the indorsement "Don Clark" on the back of said check to be compared with the hand writing of Homer Wilson and erred over the objections and exceptions of the defendant in not sustaining the motion to strike out all the evidence of the witnesses Crain, Hodge and Griffin relating to the sale of said wheat and the check given in payment thereof. State v. Drew, 179 Mo. 315; State v. Field, 234 Mo. 615; State v. Daubert, 42 Mo. 239. (3) The verdict cannot be sustained without basing an inference of facts upon a further inference of facts, which the courts refuse to do. State v. Lockland, 136 Mo. 33; State v. Darling, 199 Mo. 168; State v. Capps, 311 Mo. 683; State v. Jacobs, 133 Mo.App. 182; State v. Simon, 57 S.W.2d 1062; State v. Stewart, 63 S.W.2d 210; State v. James, 133 Mo.App. 300.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) The verdict is not against the law and the evidence and is supported by circumstantial evidence to such an extent that a directed verdict at the close of the State's case and at the close of the whole case was properly refused. State v. Carroll, 232 S.W. 702; State v. Nasello, 30 S.W.2d 136, 325 Mo. 442; State v. Parr, 246 S.W. 903, 296 Mo. 406; Stat v. Barr, 78 S.W.2d 104, 336 Mo. 300; State v. Lebo, 98 S.W.2d 697; State v. Starling, 207 S.W. 767; State v. Meadows, 51 S.W.2d 1033, 330 Mo. 1020; State v. North, 85 S.W.2d 46, 337 Mo. 470; State v. Stuart, 289 S.W. 822, 316 Mo. 150; State v. Kelley, 106 S.W.2d 488; Secs. 4048, 4056, R. S. 1929. (2) The State did prove a sufficient breaking to constitute burglary. State v. Loges, 98 S.W.2d 564, 339 Mo. 862; State v. Helms, 78 S.W. 592, 179 Mo. 280; State v. Woods, 38 S.W. 722, 137 Mo. 6. (3) The court properly refused a motion for new trial on account of surprise and newly discovered evidence. State v. Jennings, 34 S.W.2d 50, 326 Mo. 1085; State v. Walkers, 250 Mo. 316; State v. Jennings, 34 S.W.2d 50, 326 Mo. 1085; State v. Grant, 98 S.W.2d 761; State v. Walker, 157 S.W. 309, 250 Mo. 316; State v. Short, 87 S.W.2d 1031, 337 Mo. 1031.

OPINION

Ellison, J.

The appellant was convicted of burglary for breaking into the granary of Lorenzo Davis, a farmer in Polk County, and his punishment assessed by the jury at two years' imprisonment in the penitentiary. The evidence was circumstantial. His brief on this appeal contains six assignments of error, five of which complain in one way or another of the insufficiency of the evidence and one of the failure to grant him a new trial on the ground of surprise.

The prosecuting witness, Davis, lived about six miles south of Bolivar. He testified that on the evening of Monday, December 28, 1936, he fastened the door of the granary by means of a wire latch hooked over a nail. Early the next morning he found the door open, the place in disorder, different kinds of seeds and feeds dumped on the floor, a number of burlap sacks gone, and from twenty to thirty bushels of wheat missing. The wheat had some straw, chaff, pieces of sticks and the like mixed in it.

Along a course from the granary to the highway Mr. Davis found two sets of foot prints, one larger than the other. The larger set showed imprints of three chain outlines which had been stamped by the manufacturer across the sole of the shoe that made them. This shoe was larger than a number 8. There was a thin trail of wheat scattered along the course, and at a point toward the road he found seven sacks of wheat abandoned. He had got up that night about 1:30 and lit the lamp for a few minutes. It was his theory that this caused the burglars to leave the sacks of wheat thus found. At a wire fence which had been cut in effecting an exit to the highway he found a brown glove. The appellant's shoes were produced at the trial bearing the chain impressions above described and Mr. Davis said to the best of his knowledge "they compared with the shoe tracks left in the ground." He also identified the glove, but it was too small for his hand though all the footprints were more than a size larger than his feet. The appellant was not asked to try on the glove by the attorneys on either side. It was proven by one witness that he owned a pair of brown gloves, but the witness could not say whether they were like the one in evidence.

Out on the highway the tire tracks of two automobiles were found in the ground, which was spongy from recent rainy weather. These cars had come from the east to a gateway into the barn lot of Floyd Russell, who lived about one-fourth mile east of Davis. Here they had headed in toward the gate and backed out swinging west, and continued backing until they were about one-eighth mile from the granary. The footprints from Davis' granary led to this point and loose wheat was scattered in the road. One set of tire tracks was smaller than the other, and such as would be made by a Model T. Ford. The left front tire had a knobby tread. It made the south track while the car was heading west and the north track after the car was backing west. The other car made larger tracks the right front tire leaving a peculiar marking.

Some two weeks later Sheriff Harry Butler examined the appellant's automobile, a Model T Ford coupe, and found a tire with a knobby tread on the left front wheel. There were two empty burlap sacks in the car, one with mud on it in the "turtle back" at the rear of the car, and the other under the front seat. Wheat was scattered all over the car, under the front seat, under the floor mat, and in the turtle back. The sack under the front seat was wet and some of the wheat thereunder was sprouting. Floyd Russell, Davis' neighbor, examined the Chevrolet sedan belonging to a young man named Homer Wilson. It had a tire on the right front wheel which "compared" with one of the broader tracks he had seen in the road made by the corresponding wheel of one of the two cars that had hauled off the wheat. Mr. Russell corroborated Davis in his testimony as to the physical conditions on the Davis place the morning after the burglary, except that he did not see the brown glove.

This evidence indicating two cars had transported the wheat, was circumstantially corroborated by Mr. and Mrs. Rotrammel, two other neighbors of Davis who lived on the road one-half mile east of him. About midnight (they heard the clock strike) of December 28, they were awakened by the noise of two automobiles passing their house. Very few cars traveled over that road and there was a hill just east of them which made automobiles labor in the soft ground. The moon was shining. They saw two cars traveling west toward the Davis place, one a Model T Ford and one a "gearshift" car. The latter was ahead but they were close together. These witnsses could not see how many persons were in the cars or who they were.

The next link in the chain of circumstantial evidence was this. Leotus Griffen, a friend of the appellant, testified he met the appellant on December 28, the day of the burglary, about 7 o'clock P. M., in Don's Cafe at Bolivar, and rode with him in his car out into the country toward the Davis neighborhood. As they passed another automobile its horn was sounded. The appellant said it was Homer Wilson, that he wanted to talk to him, and turned around and followed the other car back to town. There he let Griffen out and parked his car beside Wilson's car and got out and talked to Wilson. This was about 8 P. M. or later, and the witness saw appellant and Wilson no more that night. He proceeded to Don's Cafe and remained there until about 10:30 or 11 o'clock. Homer Wilson was the owner of the Chevrolet sedan with a tire on the right front wheel which Mr. Russell testified "compared" with the peculiar tire track found in the road near the Davis place the morning after the burglary.

Next morning, December 29, about 11 A. M. Mrs. Carrie Mitchell was seated in a parked automobile on the south side of West Commercial Street in Springfield in the vicinity of the Greene County Farmers Exchange, located at No. 335 on that street. Mrs. Mitchell lived in the country east of Bolivar and was well acquainted with the appellant and Homer Wilson. She testified she saw the appellant drive by alone in...