State v. Bennett, No. 23825.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRailey
Citation297 Mo. 190,248 S.W. 924
PartiesSTATE v. BENNETT.
Docket NumberNo. 23825.
Decision Date23 February 1923
248 S.W. 924
297 Mo. 190
STATE
v. BENNETT.
No. 23825.
Supreme Court of Missouri, Division No. 2.
February 23, 1923.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

Lee Bennett was convicted of larceny, and he appeals. Reversed and remanded.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.


On August 15, 1921, the prosecuting attorney of Atchison county, Mo., filed in the circuit court of said county a verified information which reads as follows:

"Thomas M. Bailey, prosecuting attorney within and for the county of Atchison and state of Missouri, under his oath of office informs the court that Lee Bennett and Joseph Bridges, on or about the 31st day of May, A. D. 1921, at the county of Atchison, in the state of Missouri, 65 silk blouses of the value of $5 each, 10 silk petticoats of the value of $3 each, 14 bolts of silk of the value of $15 each, and one voile dress of the value of $4, and all of the aggregate value of $569, of the personal property, goods, and chattels of the Golden Rule store, B. F. Coughlan, sole owner, then and there steal, take and carry away, against the peace and dignity of the state. Thomas hi. Bailey, prosecuting attorney within and for the county of Atchison and state of Missouri."

A severance was granted, defendant Lee Bennett placed upon trial, and on November 28, 1921, the jury before whom this case was tried returned into court the following verdict:

"We, the jury, find the defendant guilty, and we assess his punishment at imprisonment in the penitentiary for the period of 2 years.

 "Foreman, J. M. N. Youel."
                

Defendant in due time filed a motion for a new trial, which was overruled. He was thereafter sentenced, judgment entered upon the verdict aforesaid, and the cause duly appealed to this court.

A transcript was filed in this court on August 30, 1922, which did not contain the evidence adduced at the trial, nor did it show that a bill of exceptions was filed in the cause. The Attorney General, on the record thus presented, briefed the case or the theory that the record proper alone could be considered. Afterwards, on December 28, 1922, appellant filed in this court a complete transcript of the record and proceedings in the cause, and which discloses that the bill of exceptions herein was filed in the circuit court of Atchison county, Mo., on November 27, 1922.

The evidence on behalf of the state tends to show that on May 31, 1921, B. F. Coughlan owned a stock of goods at Hamburg, Iowa, then and there under the control of his brother, M. Coughlan; that certain silks and other goods, of the value of more than $30, were taken from said store on the night of May 31, 1921, without the knowledge

248 S.W. 925

or consent of said Coughlans, or either of them; that shortly afterwards the property aforesaid was found concealed in a beer box in Atchison county, Mo., and possession of same was taken by the sheriff of said county; that said goods contained the mark used by said Coughlans in fixing the cost and selling price of same; that soon after said goods were taken defendant Bennett talked with H. M. Coughlan at said store in Hamburg, and staid he was not guilty, but wanted to know what Coughlan would accept in...

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12 practice notes
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...State v. Turner, 246 Mo. l.c. 611, 152 S.W. l.c. 316. (27) Failure to instruct on circumstantial evidence was error. State v. Bennett, 297 Mo. 190, 248 S.W. 924; State v. Hancock, 340 Mo. 918, 104 S.W. (2d) 241. (28) Instruction 1 made no reference to "excusable homicide," "justifiable homi......
  • State v. Foster, No. 39962.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1946
    ...(16) The court erred in failing to instruct the jury on the law of circumstantial evidence as applicable to this case. State v. Bennett, 297 Mo. 190, 248 S.W. 924; State v. Hancock, 340 Mo. 918, 104 S.W. (2d) 241. (17) The court erred in failing to instruct the jury properly and adequately ......
  • State v. Gillum, No. 33203.
    • United States
    • United States State Supreme Court of Missouri
    • December 1, 1934
    ...case. This was in error. State v. Silvey, 296 S.W. 130; State v. Crawford, 289 S.W. 962; State v. Baird, 231 S.W. 625; State v. Bennett, 248 S.W. 924; State v. Miller, 237 S.W. 498; State v. Kelb, 48 Mo. 269; State v. Taylor, 118 Mo. Roy McKittrick, Attorney General, and Covell R. Hewitt, A......
  • State v. Hadlock, No. 26938.
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1926
    ...evidence. Judge RAILEY himself recognized the application of the principle in case of State v. Bennett, 297 Mo. loc. cit. 194, 248 S. W. 924. But that discussion was wholly unnecessary in this case because the case was tried in September, 1925, after the act of 1925, p. 198, was in force, w......
  • Request a trial to view additional results
12 cases
  • State v. Brinkley, No. 39557.
    • United States
    • Missouri Supreme Court
    • March 11, 1946
    ...State v. Turner, 246 Mo. l.c. 611, 152 S.W. l.c. 316. (27) Failure to instruct on circumstantial evidence was error. State v. Bennett, 297 Mo. 190, 248 S.W. 924; State v. Hancock, 340 Mo. 918, 104 S.W. (2d) 241. (28) Instruction 1 made no reference to "excusable homicide," "justifiable homi......
  • State v. Foster, No. 39962.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1946
    ...(16) The court erred in failing to instruct the jury on the law of circumstantial evidence as applicable to this case. State v. Bennett, 297 Mo. 190, 248 S.W. 924; State v. Hancock, 340 Mo. 918, 104 S.W. (2d) 241. (17) The court erred in failing to instruct the jury properly and adequately ......
  • State v. Gillum, No. 33203.
    • United States
    • United States State Supreme Court of Missouri
    • December 1, 1934
    ...case. This was in error. State v. Silvey, 296 S.W. 130; State v. Crawford, 289 S.W. 962; State v. Baird, 231 S.W. 625; State v. Bennett, 248 S.W. 924; State v. Miller, 237 S.W. 498; State v. Kelb, 48 Mo. 269; State v. Taylor, 118 Mo. Roy McKittrick, Attorney General, and Covell R. Hewitt, A......
  • State v. Hadlock, No. 26938.
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1926
    ...evidence. Judge RAILEY himself recognized the application of the principle in case of State v. Bennett, 297 Mo. loc. cit. 194, 248 S. W. 924. But that discussion was wholly unnecessary in this case because the case was tried in September, 1925, after the act of 1925, p. 198, was in force, w......
  • Request a trial to view additional results

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