State v. Barton

• Decision Date: 09 March 1953
• Docket Number: No. 43103,43103
• Citation: 363 Mo. 991,255 S.W.2d 752
• Parties: STATE v. BARTON.
• Court: Missouri Supreme Court

Page 752

255 S.W.2d 752

363 Mo. 991

STATE v. BARTON.

No. 43103.

Supreme Court of Missouri, en Banc.

March 9, 1953.

Green & Green, West Plains, for appellant.

J. E. Taylor, Atty. Gen. and Julian L. O'Malley, Asst. Atty. Gen., for respondent.

DALTON, Judge.

Defendant was convicted of grand larceny and sentenced to two years imprisonment in the state penitentiary. He has appealed. On a prior appeal, a similar conviction and sentence was reversed and the cause remanded. State v. Barton, 361 Mo. 780, 236 S.W.2d 596.

The prosecution was instituted in Shannon county and went on change of venue to Reynolds county. The state's evidence tended to show that D. P. Hearn operated a general store at Teresita on Highway 60 in the west part of Shannon county. He had five rolls of fencing wire of the value of $65.50 stored near the end of a porch at the front of his store. On February 12, 1949, about 5:30, 'just between sundown and dusk' a pickup truck drove just past the front of his store and stopped. Defendant and a Mr. Nash were in the truck. Defendant got out and came in the store and made a small purchase of some lunch goods and then went to the garden seed rack and looked over the garden seed until Nash came in. Defendant was in the store about 15 minutes, but after Nash came in, defendant paid for his small purchase and they went out and got in the truck. As they were leaving, Hearn saw that the truck was loaded with wire. He looked at the end of the porch, noticed that his wire was gone and he and a Mr. Buffington promptly started in pursuit of the truck. Three miles east of the store, near Montier, they found two rolls of wire lying in the road. The other three rolls were located at Nash's station a few miles west of Winona and some 15 miles from Teresita. Hearn notified the State Highway Patrol and defendant was found at Winona, where he had a small picture machine in a night club and was taking pictures for the purpose of selling them. Defendant denied taking the wire but admitted the wire was hauled in his pickup truck. He asked the price of the wire and wanted to pay for it.

Nash, a witness for the state, testified that he was a cousin of defendant and that they were together on February 12th, hauling strips to Nash's place in defendant's pickup truck. Nash testified: 'We stopped at Teresita and Verdie said, 'We are going to get some wire.' He told me to load on five rolls of wire, that woven wire. I loaded it on. He went in the store and, I think, he bought a small box of crackers and some garden seed and some cookies. When we got ready to go, before we got in the pickup, I asked him--I said, 'Verdie, was the wire paid for?' He said, 'Everything was taken care of, get in.' We came on back down to my house.' When they arrived at Nash's home they had only three rolls of wire and Nash helped defendant unload the wire back of Nash's mother's home.

Hubert Wright, a state highway patrolman who participated in making the arrest, testified that he found defendant 'in the building there at the Rainbow Tavern taking pictures.' 'He (defendant) denied getting the wire and then said he would pay for it. * * * We asked him who was with him and he said nobody was with him when he got the wire. * * * We looked at the pickup and saw the fresh wire marks on it. * * * He offered to pay for the wire or return it the next morning.'

Roy W. Schuenemeyer, a patrolman who accompanied Wright, testified: 'We asked Verdie where he had been that evening or that day and he told us he had been up towards Mountain View. We asked if there was anybody with him and he said, 'Yes.' We asked who it was and he said he didn't know the fellow's name. We asked him what they had been doing and he said he had been drinking beer with him and didn't know exactly who he was. * * * We ask Verdie if he knew him (Hearn) and he said, 'Yes', he was the man at the store up at Teresita. We asked Verdie if he got the wire and he denied it at first and later stated he did not get the wire, but the other fellow with him loaded the wire on and he went on. Verdie stated that he asked this other fellow if the wire had been taken care of and he said this other fellow told him it was all right, that he knew the man and would take care of it. Then Verdie asked to talk to Mr. Hearn alone. * * * Verdie asked the sheriff if he could pay for the wire.'

Defendant in his own behalf testified that he had lived in Shannon county all his life near Winona; that the only thing he remembered with reference to what took place on February 12, 1949, was that he went with Pete Nash to Mountain View. 'We went to see about selling a pickup truck, the last I remember is when I went to the gunsmith (in Mountain View) until the next morning when I woke up in jail' at Eminence. He said that he had been afficted mentally and physically before February 12th; that he had heart trouble and high blood pressure, which had bothered him since about 1934; that he had blackouts or amnesia and passed out sometimes; that the attacks would come, 'maybe a month apart or so, no definite time--you couldn't tell'; and that he had been taking treatment from Dr. Heart at Salem. He saw Dr. Heart first in August 1948, and visited him every week or two. He said he had a stroke on July 6, 1950, and it paralyzed his left side. He admitted that his picture machine was set up at the Rainbow Tavern in Winona and that he had been working there with the picture machine all winter. He said that he just happened to be down there at the time of his arrest. He didn't remember telling the man he would pay for the wire. He quit driving his automobile in the summer of 1950, but was driving at the time of the trial in 1951 and he was also taking pictures and selling popcorn at Eminence in July 1951.

Dr. M. M. Heart, age 31, a physician and surgeon, who had practiced medicine for five years, testified that he first saw defendant in August 1948; that defendant had hardening of the arteries and high blood pressure and was nervous; that he prescribed medicine for defendant; that defendant's condition 'with his hardening of the arteries' would have a tendency to cause him at times to blackout; that the condition in which he found defendant would lead him to believe that defendant could suffer from blackouts for 'some 30 seconds to a few hours, or actually a coma.' He had given defendant theobromide, a blood vessel dialator. Prior to February 12, 1949, defendant had mentioned to him that he had a feeling of insecurity and on occasions he could not remember like he should. He said he had seen defendant some nine times. The witness denied that he had told the jury that a man would blackout to the extent that he could travel the highway and carry on a picture taking business and not know what he was doing. He thought it was possible for defendant to go from four o'clock in the evening to eight o'clock the next morning without knowing what he was doing.

Appellant has not favored us with a brief and we find but one assignment of error in his motion for a new trial, to wit, that the court erred in giving Instruction No. 2 covering the defense of insanity. The instruction is as follows:

'The Court instructs the jury that if you find and believe from the evidence that the defendant at the time of the commission of the act charged in the information, if you should find and believe beyond a reasonable doubt from the evidence herein that he did commit such act, was so...