State v. Busch

• Decision Date: 17 August 1938
• Docket Number: 35848
• Citation: 119 S.W.2d 265,342 Mo. 959
• Parties: The State v. Otho Busch, Appellant
• Court: Missouri Supreme Court

119 S.W.2d 265

342 Mo. 959

The State v. Otho Busch, Appellant

No. 35848

Supreme Court of Missouri

August 17, 1938

Appeal from Lincoln Circuit Court; Hon. Edgar B. Woolfolk Judge.

Reversed and remanded.

Williams & Huston for appellant.

(1) State's Instruction 5 is erroneous because it purports to cover the whole case and authorizes a verdict without considering defendant's defense. State v Collins, 237 S.W. 519; State v. Slusher, 256 S.W. 819; State v. Harris, 267 S.W. 804; State v. Mundy, 76 S.W.2d 1091. (2) State's Instruction 5 is erroneous in that it is not predicated upon facts in evidence. State v. Elsey, 201 Mo. 571; State v Kauffman, 46 S.W.2d 847; State v. Mundy, 76 S.W.2d 1091. (3) The court erroneously failed to instruct the jury on the defense that the defendant hauled the cattle for hire without any intention to steal them or any knowledge that same had been stolen. Sec. 3681, R. S. 1929; State v. Harris, 267 S.W. 804; State v. Slusher, 256 S.W. 819; State v. Palmer, 88 Mo. 573; State v. Cantrell, 234 S.W. 802. (4) State's Instruction 6, which required the jury to consider statements made by the defendant relative to the offense and declaring unfavorable statements are presumed to be true is erroneous in the following respects: (a) it invades the province of the jury; (b) it is an unwarranted comment on the evidence, and (c) it is not predicated upon the facts in evidence. State v. Bartley, 84 S.W.2d 640; State v. Duncan, 80 S.W.2d 154. (5) State's Instruction 7, instructing on the credibility of witnesses, is erroneous in that it is contrary to one of the leading maxims of legal jurisprudence, to-wit: "Falsus in uno, falsus in omnibus." State v. Hamilton, 263 S.W. 130. (6) It was error to ask one of the defense witnesses the question, "Are you out on bond on this charge you were in jail for?" State v. Bounds, 262 S.W. 412; State v. Tracy, 225 S.W. 1011. (7) The defendant was erroneously cross-examined as to matters not referred to in his examination in chief. Sec. 3692, R. S. 1929; State v. Nicholson, 7 S.W.2d 378; State v. Pierson, 56 S.W.2d 124.

Roy McKittrick, Attorney General, and W. J. Burke, Assistant Attorney General, for respondent.

(1) State's Instruction 5 is not erroneous and the court by setting out in quotations "and unless you so find you will acquit the defendant," is sufficient reference to any defense the defendant may have. State v. McMurphy, 25 S.W.2d 82; State v. Campbell, 84 S.W.2d 620; State v. Berezuk, 55 S.W.2d 949, 331 Mo. 626; State v. Messino, 30 S.W.2d 762, 325 Mo. 743; State v. Collins, 237 S.W. 519; State v. Slusher, 256 S.W. 819; State v. Wilson, 12 S.W.2d 445; State v. Trice, 92 S.W.2d 136, 338 Mo. 74; State v. Pope, 92 S.W.2d 911; State v. Harris, 267 S.W. 802. (2) In subdivision 2 of point 1 the appellant complains of Instruction 5 as being contrary to the evidence in the case. He claims that since there was no evidence in the case that the defendant, Otho Busch, alone stole the cattle described in the information; then it was erroneous to assert in the instruction "either alone or." State v. Nasello, 30 S.W.2d 132, 325 Mo. 442; State v. Thornton, 58 S.W.2d 317. (3) State's Instruction 6, declaring unfavorable statements are presumed to be true, was not erroneous, when the instruction further provided: "That the jury must consider such statements altogether. The defendant is entitled to what he said for himself, if true." State v. Johnson, 63 S.W.2d 1000, 333 Mo. 1008; State v. Hamilton, 263 S.W. 131, 304 Mo. 30; State v. Bartley, 84 S.W.2d 640, 337 Mo. 229; State v. Duncan, 80 S.W.2d 153, 336 Mo. 600; State v. Mabry, 22 S.W.2d 639. (4) State's Instruction 7 instructing on the credibility of witnesses is not erroneous. State's Instruction 7 reads as follows: State v. Hamilton, 263 S.W. 127, 304 Mo. 30. (5) It was not error to ask Lonnie Kelch, one of the defendant's witnesses, "Are you out on bond on the charge you were in jail for?" State v. Short, 87 S.W.2d 1031, 337 Mo. 1061. (6) The defendant was not erroneously cross-examined as to matters; the defendant was examined on direct examination. State v. Short, 87 S.W.2d 1031, 337 Mo. 1061; State v. Tull, 62 S.W.2d 392, 333 Mo. 152; State v. Ayres, 285 S.W. 998, 314 Mo. 574; State v. Simmons, 58 S.W.2d 302, 332 Mo. 347; State v. Gilmore, 81 S.W.2d 431, 336 Mo. 784; State v. Jackson, 102 S.W.2d 612. (7) The court properly conducted the trial and did not make improper remarks or improperly limit the examination of witnesses. State v. Bobbit, 146 S.W. 799, 242 Mo. 291; State v. Ryland, 25 S.W.2d 109; State v. Flinn, 96 S.W.2d 506; State v. Barnes, 29 S.W.2d 158, 325 Mo. 545; State v. Locket, 168 Mo. 489, 68 S.W. 536; State v. Johnson, 64 S.W.2d 655, 334 Mo. 510.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Appellant, defendant below, was convicted of grand larceny, for the stealing of cattle, was sentenced to five years' imprisonment in the penitentiary, and has appealed.

The State's evidence shows that Frank B. Cochran owned a farm in Lincoln County on which he had fifty-seven head of cattle. In the field in which the cattle were there was a barn, with adjacent sheds, near the highway, occupied by the cattle at will. On the night of December 31, 1935, or rather the early morning of January 1, 1936, at about two or two-thirty o'clock a. m., seven of those cattle were stolen. The State's evidence was that four young men committed the theft, viz., Abe Chandler, Clarence Creech, Derwood Wells and defendant, Otho Busch. The stolen cattle were taken that night by defendant and Chandler to St. Louis, and there, early the next forenoon, sold by Chandler to the American Packing Company, from which they were soon thereafter recovered by Cochran. Within a few days thereafter said four men were arrested. Chandler, Creech and Wells pleaded guilty and were sentenced to the intermediate prison or reformatory at Algoa. Those three testified as witnesses for the State. Their testimony was that the theft was committed pursuant to prearrangement and agreement, all four men, viz., said three and Busch, participating in the physical act of taking the cattle; that the cattle were loaded into defendant's truck at Cochran's barn; that it was agreed that defendant and Chandler should take the cattle to St. Louis and sell them; and that defendant was to have one-half of the proceeds. It is admitted that said cattle were transported to St. Louis by defendant in his truck, Chandler accompanying him.

Defendant, testifying in his own behalf, claimed that he had no knowledge that the cattle were being stolen; that on the night of December 31st as he was going home in his truck he was overtaken and accosted by two men in an automobile, who were then unknown to him but who, he later learned, were Chandler and Creech, and was asked if he would haul a light load of cattle to St. Louis for them, their truck having broken down; that after some negotiation he agreed to haul the load for $ 7; that he then, accompanied by and under direction of Chandler, went to the barn above mentioned, helped in the loading of the cattle, and then, accompanied by Chandler, took the cattle in his truck to the American Packing Company at St. Louis, where they were unloaded, and that he there left Chandler, not seeing him any more, and went over into Illinois, later returning to his home. In short it may be stated that defendant, who said he was in the trucking business, while admitting that he helped load the cattle at the time and place shown by the State's evidence and transported them thence to St. Louis, claimed as his defense he had no knowledge that they were being stolen and was simply hauling them for Chandler, or Chandler and Creech, in good faith, for hire.

The foregoing is a sufficient general outline of the facts. There was considerable testimony tending to impeach Chandler and Creech, especially the latter, by statements made out of court contradictory of their testimony at the trial, such statements being to the effect that defendant did not know the cattle were being stolen and had nothing to do with the stealing. That testimony need not be detailed. The State clearly made a submissible case, the weight and credibility of the evidence being for the jury. Such further facts as may be necessary will be stated in connection with points to which they particularly apply.

The court gave, among others, the following Instruction, No. 6:

"The jury is instructed that if you believe and find from the evidence that the defendant made any statement or statements if the jury find any statements were made by the defendant, in relation to the offense charged in the information and after such offense is alleged to have been committed, you must consider such statement or statements all together. The defendant is entitled to what he said for himself, if true, and the State is entitled to the benefit of anything he may have said against himself in any statement or statements proved by the State. What the defendant said against himself, if anything, the law presumes to be true, unless negatived by some other evidence in the cause, because said against himself. What the defendant said for himself the jury may believe or disbelieve, as it is shown to be true or false by the evidence in the case. It is for the jury to consider under all the facts and circumstances in evidence in this case, how much of the whole statement or statements of the defendant proved by the State, if any, the jury, from the evidence in the case, deem worthy of belief."

Appellant charges prejudicial error in the giving of said instruction.

The only evidence that might be thought to call for an instruction relative to extrajudicial statements of defendant after the commission of...