State v. Baker

• Decision Date: 23 February 1915
• Docket Number: No. 18392.,18392.
• Citation: State v. Baker, 264 Mo. 339, 175 S.W. 64 (Mo. 1915)
• Parties: STATE v. BAKER
• Court: Missouri Supreme Court

175 S.W. 64

264 Mo. 339

STATE v.BAKER

No. 18392.

Supreme Court of Missouri, Division No. 2.

February 23, 1915.

Rehearing Denied March 30, 1915.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

Pearl Baker was convicted of grand larceny, and he appeals.Affirmed.

Defendant, tried in the circuit court of Clark county upon an information charging him with grand larceny, for that he had stolen certain domestic fowls, viz., four goslings, was found guilty and his punishment assessed at imprisonment in the penitentiary for a term of three years..From this conviction, after the usual motions for a new trial and in arrest, he has appealed.

The facts disclosed by the evidence are substantially as follows:

Both defendant and one Mrs. Samuel Denny resided upon farms in Clark county, distant some several miles from each other.Mrs. Denny was the owner of six goslings of the White Emden breed, and which were some eight weeks old.These goslings, at the time the four in question are alleged to have been stolen, were kept by Mrs. Denny in a goods box which she had converted into a coop.On the night of June 16, 1912, four of these goslings disappeared from this coop, into which they had been driven about 7:30 o'clock on the evening of the preceding night.The coop was found open, and the two remaining goslings had escaped therefrom; mud was found upon the woven wire fence near the coop, and the tracks of a man were found along the ditch at the side of the roadway near this point.Certain parties, apparently active and zealous members of a voluntary association known as the "Anti-Horse Thief Association," watched the premises of defendant from some little distance with a field glass.These spying persons testified that they saw the goslings in the yard of defendant, and saw him assist his wife in feeding and caring for them and in driving them to roost in the evenings.From information thus obtained and from the fact that the defendant seems to have been suspected of this theft from the beginning, a search warrant was procured some five days after the alleged theft, and the sheriff, being armed therewith and accompanied by Mrs. Denny, Mr. Denny, and divers others of the vicinage, forming altogether quite a large aggregation, went to the premises of defendant, and there found some 16 goslings, among which were the four which are alleged to have been stolen from Mrs. Denny.These four goslings, from their general appearance, from the color of their legs and bills, which were said by the expert witnesses to be peculiar to this breed of geese, and from the gentleness and from the further fact that they came to her upon a peculiar call, Mrs. Denny positively identified as hers.She says that upon her claiming them defendant made denial of her ownership of them, and claimed that his wife owned them.Upon Mrs. Denny's contending that they were hers, he told her to "take them if they were hers," but that he"would show her whose property they were."The sheriff says that he told defendanthe would have to take them as sheriff, and that he was then told by defendant that he(the sheriff) could take them; that he(defendant)"would not go to law about it."Upon getting possession of the four goslings in question Mrs. Denny took them with her and turned them loose with the two others which she had.She testified that they seemed to know one another; that they"chattered together," and apparently knew the premises.In short, there was positive identification of these goslings by Mrs. Denny.Other testimony in the case showed the presence of defendant and his wife in a buggy driving in the direction of the Denny farm, and about two miles distant therefrom, late in the evening preceding the night in which the goslings were evidently taken.The defense is one of identity, that is that the goslings alleged to have been stolen were, on the contrary, hatched and raised by defendant's wife.Many witnesses were called to develop, and to combat this theory of defendant, and a sharp issue was raised creating much doubt as to where upon this question the truth lies.Both defendant and his wife testified in his behalf.There was much proof as to the bad reputation of defendant for truth and veracity, and of the wife of defendant for truth and veracity and for chastity.

Defendant filed a motion which he calls, and which calls itself, a motion to quash the information, upon the ground that defendant had been tried theretofore and acquitted upon the identical charge in the instant case.It is difficult to ascertain the facts bearing upon this alleged acquittal.These facts rest, for the most part, upon oral testimony and not upon the record.No objection, however, was made by the state to the competency of this evidence.As nearly as we can ascertain from the unfortunate condition of the record, the prosecuting attorney seems at first to have filed an information in two counts against defendant.In one count of this information he was charged with having stolen certain turkeys which belonged to one Weber, and in the other count thereof with having stolen the identical goslings belonging to Mrs. Denny, for which he is being here' prosecuted.After filing the said information in two counts, which was of course duplicitous, but before any plea was had thereon, or before the defendant was ever tried thereon, two separate informations were filed against defendant, in one of which he was charged with the larceny of the turkeys of said Weber and in the other of which he was charged with the larceny of the goslings of Mrs. Denny.Defendant seems to have been tried upon the said separate information, charging him with the larceny of the Weber turkeys and acquitted thereon; but he was hever tried upon the information having two counts, nor was he ever tried upon the separate information charging him with the theft of Mrs. Denny's goslings until the trial in the instant case, in which same case and trial he now makes the contention of autrefois acquit.Upon a full hearing, and after admitting all of the testimony of whatever kind offered by defendant, the court overruled defendant's motion to quash, and defendant excepted.

Upon the trial the court gave 7 instructions for the state, and 14 for the defendant, making 21 in all.Defendant offered two additional instructions, which the court refused.Since defendant strenuously contends that these refused instructions were correct, and that their refusal constitutes error, we set them out below.They are as follows:

"A.The court instructs the jury that when a search warrant is executed, if the property is found, the sheriff may or may not arrest the defendant; and if the property is taken and the defendant is arrested for the larceny, either at the time or after the property is taken, the state may have the sheriff retain the property until after the final trial of the defendant, under the said charge of larceny, in order that the state may use same as evidence.

"B.The court instructs the jury that when Mrs. Baker testified in chief that she was in Kansas City, the state had a right to crossexamine her as to why she went there and what she was doing there."

Such other facts as may become necessary in order to make clear the points we find it necessary to discuss will be set out in the opinion.

John A. Whiteside, of Kahoka., and Oliver C. Clay and A. F. Haney, both of Canton, for appellant.John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen., for the State.

FARIS, P. J.(after stating the facts as above).

An even dozen alleged errors are urged upon us by defendant's learned counsel.These we condense into five, so that we may not too seriously offend or add further cause for the expressed antagonism of the bar against long opinions (in all cases except those in which they are of counsel).

I.It is first contended that the court erred in overruling defendant's motion to quash the information.The grounds of this motion upon which quashal was sought and which we briefly restate, were that defendant had been at one time charged in the second count of a certain information with stealing the identical goslings of Mrs. Denny, which information also charged him (in the first count thereof) with stealing certain turkeys of one Weber; that the state elected to prosecute him upon the count charging the larceny of said turkeys, and that upon trial therefor he was acquitted.Tais allegation is not precisely in consonance with the facts as we have already shown them in the statement.

Imprimis, we may say that a motion to quash, as was the nature of the attack here, was not a proper plea.A motion to quash is directed ordinarily to matters of form, and a demurrer to matters of insufficiency of substance, or allegation appearing upon the face of the indictment or information; to such as require for their proof or illumination evidence aliunde, pleas in bar, or in abatement, or special pleas in bar are used.There are exceptions, we concede, to these general rules (State v. Glasscock, 232 Mo. 278, 134 S. W. 549;State v. Faulkner, 185 Mo. 673, 84 S. W. 967); as, for example, a motion to quash has been used to bring up the question of whether an indictment was found without the taking of testimony as a basis for it by the grand jury which preferred it (State v. Cole, 145 Mo. 672, 47 S. W. 895).Though this, after all, attacked the indictment for lack of statutory formality, which appeared, however, dehors the indictment itself.But be this as may be, no case has been found which allowed a plea of autrefois acquit to be raised by an ordinary motion to quash.

Here defendant ought to have interposed a special plea in bar, instead of moving to quash.He complains that the state erred in failing to file a replication to his said motion.No such plea to a motion to quash is required by the state.To a special plea of autrefois convict or autrefois acquit it is the practice for the...