State v. Counts
| Citation | 234 Mo. 580,137 S.W. 871 |
| Parties | STATE v. COUNTS. |
| Decision Date | 23 May 1911 |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.
Henry Counts was convicted for stealing hogs, and he appeals. Reversed, and defendant discharged.
On January 15, 1910, the prosecuting attorney of Shannon county filed an information in the circuit court of said county charging the defendant, together with John, Tucker, and Arve Counts, with feloniously stealing, taking, and carrying away four hogs, the property of J. C. Ferguson. Upon application of the defendant a severance was granted, and he was tried separately, found guilty as charged, and sentenced to two years in the penitentiary.
The state introduced evidence tending to show that J. C. Ferguson, the prosecuting witness, owned ten hogs, which he allowed to run at large in the woods, not far from where defendant's father resided. Ferguson missed five of his hogs—a reddish sow, weighing about 150 pounds, and four younger hogs, one of which was a boar. Excepting the sow, the hogs were all marked in the ear. Some boys sent by Ferguson to look for the missing animals reported to him that some hogs had been killed near a deserted cabin. Ferguson went to the place mentioned, and found there the entrails of four hogs, also hogs' hair which looked like that of his hogs. Upon being asked to describe the four hogs which the defendant was charged with stealing, he answered, "I couldn't tell you." He further testified that he did not know who got or killed his hogs.
John Dixon, a witness for the state, testified that he saw near the cabin referred to the entrails of four hogs, and some yellow, white, and black hogs' hair, that he could not identify the harf as that of Ferguson's hogs, and that defendant and other people had hogs running in that immediate neighborhood.
W. E. Barton, another witness for the state, testified that in January, 1910, he was visiting at the home of Riley Counts, defendant's father. While there, the defendant and John and Arve Counts told him that they were going to hunt for and kill the defendant's hogs. They left the house on Friday, and returned the following Monday. Next morning the witness saw part of a dead hog sticking out from a wagon near the house. Witness said to Arve Counts, "I thought you didn't get anything while you were over there," to which the other replied, "It is best to keep our mouths shut." These statements were not made in the presence and hearing of the defendant. Riley Counts purchased a killed and dressed hog from the defendant for $5. On the head of the hog witness noticed some sandy-colored hair. A portion of this hog was afterwards cooked, and witness ate of it. The meat smelled strong, which indicated to the witness that the animal was a boar.
The sheriff who arrested defendant testified that the...
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