State v. Bloomer

• Citation: 231 S.W. 568
• Decision Date: 26 May 1921
• Docket Number: No. 22640.,22640.
• Parties: STATE v. BLOOMER.
• Court: United States State Supreme Court of Missouri

231 S.W. 568

STATE v. BLOOMER.

No. 22640.

Supreme Court of Missouri, Division No. 2.

May 26, 1921.

Appeal from Circuit Court, Barry County; Charles L. Henson, Judge.

Levi Bloomer was convicted of grand larceny, and he appeals. Affirmed.

T. D. Steele, of Monett, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

WHITE, C.

The appeal is from a conviction of grand larceny. The defendant was charged with having stolen 13 hogs of the value of $135, the property of one W. C. Cooper.

Cooper lived on a farm in Barry county, about two miles distant from the farm on which the defendant Bloomer lived. The country between the two places was hilly and open pasture. In the spring of 1919 Cooper had a number of hogs, about 33 shotes and 6 sows. In March, 1919, those shotes were about 8 months old, and were allowed to run at large in the open country. Cooper, in a search for his hogs one day found one of his sows crippled. Extending his search on the 22d day of March, he found 13 of his hogs in the pasture of the defendant. A day or two later he returned with a companion, and found 7 of those hogs, 5 of which had been crated by Bloomer in preparing to haul them away. Bloomer said he sold them to Bill Wiley. When Cooper turned his shotes out to range they were not earmarked. When he found them in Bloomer's pasture they had fresh earmarks. Bloomer refused to give up the hogs; Cooper brought a replevin suit, and recovered some of them his hogs were identified by himself and two or three other witnesses.

It was claimed by Bloomer he and one Mr. Potter, from whom he rented the farm on which he lived, had an arrangement by which he was to take care of Potter's hogs for one-half of the increase. He had rounded up these shotes in the belief that they belonged to Potter and had marked them.

The evidence for the state tended to show that the shotes weighed about 75 pounds each, and were worth about 14 cents a pound, which would make the 13 hogs aggregate in value about the amount alleged in the information. A number of witnesses testified, who knew Cooper's hogs, saw those in dispute, and described the circumstances under which they ran at large. Cooper demanded the hogs of Bloomer, who thereafter attempted to keep them, and did dispose of some of them so that Cooper recovered only a portion of them in his replevin suit.

The appellant has filed no brief, and in order to consider the errors which are assigned for reversal one must have recourse to the motion for new trial and motion in arrest. These assign a defective information, error in instructions in overruling the defendant's demurrer to the evidence, failure to instruct on all the law of the case, admission of immaterial evidence, and improper cross-examination of defendant.

I. The motion in arrest says the information does not charge an offense against the law of the state of Missouri. The information follows the statute (section 3312, R. S. 1919), defining grand larceny. State v. Swearengin, 234 Mo. loc. cit. 552, 137 S. W. 880. It is suggested that in charging the offense the information omits the word "steal," and some argument is presented on that theory. The copy of the information as set out in the record, however, contains the allegation that the defendant "unlawfully and feloniously did then and there take, steal, and carry away," etc., following the language of the statute. The information is sufficient.

The demurrer to the evidence was properly overruled. Cooper identified his hogs and reinforced his identification with proof that they were his, and showed the circumstances under which they came into the defendant's possession. The defendant refused to give them up, and there was sufficient evidence from which the jury might find that he attempted to convert them to his own use and make away with them after he knew they belonged to Cooper, even if he had thought they were Potter's in the first place.

III. Instruction No. 1 is objected to. It requires the jury to find and believe beyond a reasonable doubt that at the place and time designated in the instruction:

"The defendant did then and there steal, take, and carry away 13,...