State v. Clark

• Decision Date: 03 July 1940
• Docket Number: No. 36961.,36961.
• Citation: 142 S.W.2d 68
• Parties: STATE v. CLARK.
• Court: Missouri Supreme Court

142 S.W.2d 68

STATE v. CLARK.

No. 36961.

Supreme Court of Missouri, Division No. 2.

July 3, 1940.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

Elmer Clark was convicted for larceny of a hog, and he appeals.

Affirmed.

Roy McKittrick, Atty. Gen., and B. Richards Creech, Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

Convicted and sentenced to two years' imprisonment for the larceny of a hog, Elmer Clark appeals.

Appellant has not filed a brief. The only point preserved for review in his motion for new trial questions the sufficiency of the evidence to make a submissible case. If believed, the State's testimony established the following:

Leo McDermott owned a red sow. On a Saturday night, the latter part of December, 1938, the sow was in a pen on McDermott's place in Franklin county, Missouri. He was away from home until late that night and discovered his sow was missing early Sunday morning. Monday morning McDermott identified the sow at A. H. Boyd's, five miles distant. A. H. Boyd testified that on Sunday morning about 3:30 or 4:00 a. m. appellant appeared at his place, stated one of the parties with him had purchased a hog and he, appellant, went after it that night; that his truck was stuck in a ditch and he wanted Boyd to pull him out; that he accompanied appellant to the truck; that there were several other persons at the truck; that he saw a red hog in the back of appellant's truck; that he pulled appellant's truck out onto the highway and, trying to help appellant get it started, pulled it for a distance of approximately a mile and a half; that they ascertained appellant's truck was out of gasoline; that he then noticed the hog was missing from appellant's truck; that he told appellant he had lost his hog; that appellant made no answer; that he supplied appellant with two or three gallons of gasoline; that about 4:00 p. m. Sunday a two-hundred pound red sow was found near a culvert adjacent to his place; that the sow was "awful stiff"; that he drove the sow onto his premises, and that the next day Mr. McDermott came after the animal.

Rodney McKeever, William Martin and Richard Withington were with appellant on the night in question. All testified to being at a tavern but individually said they remembered nothing from the time they left the tavern until appellant's truck went into the ditch. Martin did not remember being at Mr. Boyd's place. The only logical inference from their testimony is that they became "dead drunk" at the tavern. Neither McKeever nor Withington saw a hog in or about the truck that night. Withington testified that appellant was driving when the truck went into the ditch.

Appellant offered no witnesses in his behalf.

Conflicts between the testimony of Boyd and witnesses McKeever and Withington were for the determination of the jury, as was the credibility of said witnesses. If McKeever, Martin and Withington are to be believed on undisputed testimony, they had naught to do with McDermott's red sow. Boyd's testimony, viewed in the light of the testimony of McKeever and Withington, placed appellant in sole charge of the truck and the red hog. Appellant made no effort to explain this possession; his theory from the testimony, being that there was no hog in the truck. The issue likewise was for the jury to determine. State v. Slusher, 301 Mo. 285, 290 (I), 256 S.W. 817, 818[1]; State v. Kennon, Mo.Sup., 123 S.W.2d...