State v. Barton

• Court: Missouri Supreme Court
• Writing for the Court: Gantt
• Citation: State v. Barton, 214 Mo. 316, 113 S.W. 1111 (Mo. 1908)
• Decision Date: 24 November 1908
• Parties: STATE v. BARTON.

113 S.W. 1111

214 Mo. 316

STATE v. BARTON.

Supreme Court of Missouri, Division No. 2.

November 24, 1908.

1. CRIMINAL LAW (§ 1159) — CONVICTION — REVIEW — WEIGHT OF EVIDENCE.

A conviction will not be set aside on appeal as against the weight of the evidence unless there is an entire failure of proof or all the state's evidence is of such flimsy character as to justify the inference that the conviction was the result of passion, prejudice, or mistake.

2. ANIMALS (§ 45) — MALICIOUS KILLING — OFFENSES — VERDICT — EVIDENCE.

Evidence held to sustain a conviction for maliciously killing a calf belonging to another.

3. CRIMINAL LAW (§ 775) — INSTRUCTIONS — FORM.

Where, in a prosecution for maliciously killing a calf belonging to another, the court required the jury to find beyond a reasonable doubt that defendant committed the offense to authorize a conviction, an instruction on alibi that defendant claimed he was at another place than that at which the "alleged" crime was committed at the time when it was in fact committed, and if the jury had reasonable doubt of defendant's presence, etc., he should be acquitted, was not objectionable as instructing that unless the jury had a reasonable doubt that defendant was present at the time and place where the calf was killed they should find him guilty, without requiring a finding that a crime had been committed, or, if committed, that defendant committed it.

4. CRIMINAL LAW (§ 834) — INSTRUCTIONS — DUTY TO CHARGE — SUBSTANTIAL EVIDENCE.

Where the state's case against defendant charged with maliciously killing a calf belonging to another was based on circumstantial evidence alone, a request to charge that before the jury could convict on circumstantial evidence alone such circumstance should be so strong as to exclude every other reasonable hypothesis than defendant's guilt and must be consistent with defendant's guilt, though not properly worded, was sufficient to entitle accused to a correct instruction on such question.

Appeal from Circuit Court, Reynolds County; Joseph J. Williams, Judge.

Lewis Barton was convicted of maliciously killing a calf belonging to another, and he appeals. Reversed and remanded.

S. L. Clark and J. B. Daniel, for appellant. G. D. Sloan, Pros. Atty. (R. I. January, of counsel), for the State.

GANTT, J.

This is a prosecution commenced on the 13th of November, 1905, by the prosecuting attorney of Reynolds county, Mo., in which he charged the defendant with feloniously, willfully, and maliciously killing a bull calf, the property of Belle Dunn, at said county of Reynolds on the 7th of November, 1905. The defendant was tried before a jury on the 29th day of May, 1906, and found guilty, and his punishment assessed at a fine of $50. His motions for new trial and in arrest of judgment were overruled, and he appealed to the St. Louis Court of Appeals, and that court has transferred the cause to this court because the prosecution is for violation of section 1987, which is a felony under said section. As it is the contention of the defendant that the evidence was wholly insufficient to sustain the verdict, it will be necessary to make a somewhat full statement of the testimony.

Mrs. Belle Dunn testified that she was the owner of the calf alleged to have been shot and killed by the defendant. She was the stepmother of the wife of the defendant, and on the day that the calf was killed she was occupying a portion of the same farm on which defendant was living. The defendant had leased the farm from her husband before he died in the previous spring. She testified that, about a week before the calf was killed, the defendant said to her he would kill her calves if they were not taken out of his field. On November 8, 1905, the calf mentioned in the information was found dead in the field occupied by the defendant, having been shot with a shotgun. Myers, a witness for the state, testified that on the evening of November 7, 1905, when the witness was about a quarter of a mile from the house of the defendant and traveling in the direction of the house, he heard the report of a gun, which he judged to be a shotgun, in the direction of the field of the defendant where the calf was found dead the following morning. The witness drove on up to the house of the defendant and stopped and talked to the defendant, and in that conversation the defendant said he had been out in his field, the same in which the calf was killed, and had been driving Belle Dunn's calves out of his corn, and had just returned. This was about sundown of that day. H. L. Fitz, the officer who arrested the defendant, testified that when he arrested the defendant he said that he told the woman he would kill the calf if she did not take it out of the corn, and that he had taken his calf out and wanted her to take hers out. At first he said he did not kill the calf, but he told her he would kill it if she did not take it out of his corn; that he had just told her that to give her a scare so she would take it out. William Turner, who kept a store near the farm of the defendant, testified that he purchased a fresh hide of a calf from Mrs. Dunn about the time the calf was alleged to have been killed, and it looked as if it had a handful of shot scattered over it. The defendant testified in his own behalf, and denied the killing of the calf. Admitted that he had a conversation with the witness Myers at his home on the farm on the evening on which the calf is alleged to have...