State v. Bockman
| Decision Date | 13 October 1952 |
| Docket Number | No. 43156,No. 1,43156,1 |
| Citation | 251 S.W.2d 607 |
| Parties | STATE v. BOCKMAN |
| Court | Missouri Supreme Court |
Joseph B. Geisler, Mountain View, for appellant.
J. E. Taylor, Atty. Gen., A. Bertram Elam, Asst. Atty. Gen., for respondent.
VAN OSDOL, Commissioner.
Defendant was convicted of grand larceny under Section 560.155 RSMo 1949, V.A.M.S., and sentenced to five years in the state penitentiary. Herein upon appeal defendant-appellant contends that the trial court erred in submitting the State's case to the jury; abused its discretion in refusing to grant a continuance upon the application of defendant; erred in refusing to grant a new trial upon defendant's motion supported by uncontroverted affidavits that a witness for the State had testified falsely; and erred in allowing a special prosecutor to assist in the prosecution. Defendant- appellant also asserts that defendant was convicted on the uncorroborated testimony of an accomplice, and contends the trial court failed to give a correct cautionary instruction on the testimony of an accomplice.
The State introduced evidence tending to show that neat cattle, two white faced cows and two calves, were turned out on the range in Shannon County by their owner, S. B. Hodge, on the 27th day of April, 1951. These cattle were sold at a sale barn at Columbia, Missouri, to one Homer Calvin, May 9, 1951. The cattle had been brought to Columbia in defendant's truck. There was testimony tending to show that defendant caused the cattle to be listed at the sale barn under the name of Earl Goforth who had accompanied defendant to Columbia, and that defendant negotiated the sale of the cattle to Calvin; but, when the check was made out for the purchase price, defendant requested Calvin to make the check payable to Goforth who cashed the check and divided the proceeds with defendant.
Earl Goforth, who was separately charged with larceny of the cattle, testified for the State in the instant case. He said that defendant, who resided about forty miles away, came to the Goforth home in Shannon County the afternoon of May 7, 1951. Defendant 'wanted to see if he could get me to help him get some cattle.' Goforth further testified that he at first refused; but, late the next afternoon, he fell in with defendant's plan. Goforth and defendant drove the four head of cattle to the barn on the Goforth farm the late afternoon of May 8th; loaded the cattle into defendant's truck during the night; and departed for Columbia very early in the morning of May 9th.
Defendant testified that he, a trucker, had been requested by Goforth to 'come up' and haul some cattle, and that his only acts or interest in the entire transaction were those of transporting the cattle for hire to the place of sale; that he was paid $50 for this service; that he did not know the cattle had been stolen, but supposed they were the property of Goforth; and that his participation in the actual sale of the cattle to Calvin was merely that of trucker rendering customary assistance to a patron, Goforth.
The evidence was substantial and sufficient in tending to prove defendant's guilt, and the trial court did not err in submitting the State's case to the jury. The testimony of Goforth, an accomplice, was sufficient to sustain defendant's conviction of the crime charged. A defendant may be convicted on the uncorroborated testimony of an accomplice. State v. Crow, Mo.Sup., 87 S.W.2d 427; State v. McBride, 334 Mo. 890, 68 S.W.2d 688; State v. Stephens, Mo.Sup., 8 S.W.2d 3.
On the day of the trial, September 20, 1951, defendant filed an application for a continuance on the stated ground that a witness, one Cynthia Goforth, aunt of Eari Goforth, was confined to the hospital on orders of her physician, and that the witness could not appear in court without impairing her health. The application was verified by the affidavit of defendant stating the facts set out in the application were true to the best of his knowledge and belief. The application stated that the testimony of the witness would tend to discredit the testimony of the State's witness, Earl Goforth; and that the witness, if present, would testify that Earl Goforth had told her his story implicating the defendant as a party to the crime was concocted in order to shift the blame and thereby obtain a lighter sentence for him, Goforth. The granting or refusal of a continuance rests largely within the discretion of the trial court. State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077. The testimony of the absent witness, according to the application, would tend to impeach or discredit the witness Goforth. The application did not show what diligence had been used to procure the testimony of the absent witness, nor did the application state the probability and time of procuring her testimony. The application did not comply with Section 545.720 RSMo 1949, V.A.M.S., in the further respect that, although the facts as stated in the application were verified, the affiant did not state he believed the facts, to which he stated the absent witness would testify, were true. State v. Kimbrough, supra. Defendant-appellant virtually concedes the insufficiency of the application, but complains that he should have been permitted to amend. The record, however, fails to reflect any request of defendant to file an amended application. We are of the opinion the trial court did not abuse its discretion in refusing to grant the continuance.
Defendant's wife, a cousin of Earl Goforth, testified that, in August 1951, Goforth came to the Bockman home and told her that special counsel had told him that, upon payment of a stated fee, counsel would 'clear him and throw it all on Roy because he had been convicted once before.' Defendant's wife testified that one ...
To continue reading
Request your trial
-
State v. White
...rests largely within the sound judicial discretion of the trial judge. State v. Le Beau, Mo., 306 S.W.2d 482, 486(5); State v. Bockman, Mo., 251 S.W.2d 607, 608(3). There was no abuse of that discretion Defendant's next point is that the court erred in permitting the prosecuting attorney in......
-
State v. Johnstone, 47366
...resting in trial courts in ruling a defendant's requests for a continuance. State v. Le Beau, Mo., 306 S.W.2d 482, 486; State v. Bockman, Mo., 251 S.W.2d 607, 608. The circumstances with respect to the newspaper article fall within the observations in State v. Golden, 353 Mo. 585, 183 S.W.2......
-
State v. Summers
...bad character made them totally unworthy of belief. In State v. Harris, 295 S.W.2d 94, 95 (Mo.1956), the court, citing State v. Bockman, 251 S.W.2d 607 (Mo.1952) and State v. Emrich, 250 S.W.2d 718 (Mo.1952), held that the testimony of accomplices, even though uncorroborated, was legally su......
-
State v. Harrington
... ... Camlen, 515 S.W.2d 574, 576 (Mo. banc 1974), this Court said: ... ' ... No prejudice has been demonstrated in the appearance of a private prosecutor, permitted by the trial court to assist in the prosecution. Attention is called, however, to the remarks in State v. Bockman, 251 S.W.2d 607, 609(6, 7) (Mo.1952), criticizing the custom of permitting employment of special prosecutors. The practice invites error from an excess of zeal which might well be avoided by leaving the conduct of a criminal prosecution entirely in the hands of the elected official upon whom such ... ...