State v. Crow
| Decision Date | 11 July 1935 |
| Docket Number | No. 33997.,33997. |
| Parties | THE STATE v. JASPER CROW, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Gasconade Circuit Court. — Hon. R.A. Breuer, Judge.
AFFIRMED.
Frank W. Jenny and Hutchison & Hutchison for appellant.
(1) It is highly improper for the trial court to allow a prosecuting attorney to inform the jury that the case came to Gasconade County from Franklin County on application of the defendant. State v. Ray, 227 S.W. 969; State v. Miller, 172 S.W. 385. (2) Witness Lahmann was the star witness for the State; without his evidence the State's case would fail to establish any crime against the defendant, and for the purpose of affecting his credibility as a witness while on the stand testifying for the State, defendant should have been permitted to prove by him that he had asked Hulsey to go with him and round up cattle on the free range in Washington County, Missouri, steal them and take them to St. Louis to the market. And defendant should have been permitted to prove by same witness, on cross-examination, that he admitted the burning of a schoolhouse in Washington County, when such evidence was offered for the sole purpose of affecting witness's credibility as a witness for the State. State v. Vandiver, 149 Mo. 504. A wide range of cross-examination should be allowed in criminal cases, especially where the State is relying on the evidence from a witness with the character of Lahmann. State v. Decker, 161 Mo. App. 396; State v. Elkins, 101 Mo. 344, 14 S.W. 116. The character of a witness at a time other than when he is testifying may be shown as evidencing his character at the time of testifying. Lindsay v. Bates, 223 Mo. 310. (3) The information in this cause charges defendant with larceny of cattle in Franklin County; the evidence tends to prove that certain cattle were stolen in Washington County and transported through Franklin County to the State of Illinois. There is no evidence that defendant conveyed said cattle into Franklin County or converted any cattle to his own use in Franklin County. All of the leading cases in Missouri based on this particular section of our statutes (now Sec. 3379, R.S. 1929) are cases in which property was found in the county where information was filed or indictment returned. Sec. 3379, R.S. 1929; State v. Smith, 66 Mo. 61; State v. Ware, 69 Mo. 332; State v. McGraw, 87 Mo. 161; State v. Williams, 147 Mo. 14; State v. Parker, 301 Mo. 294. "Through" is a very common preposition in its ordinary and primary meaning, "from end to end" or "from side to side," "from one side to the opposite side" or "from one surface or limit to the other surface or limit" (62 C.J. 945), as distinguished from the word "into," clearly intending to convey the meaning of an entering without passing beyond or "through." The Legislature must be presumed to intend the usual and ordinary meaning of the language of the statute.
Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.
(1) The demurrer to the evidence at the close of the whole case was properly overruled by the trial court for there was substantial evidence to support the verdict, this point being assigned as error in Points 18, 4, 5, and 6 of the motion for new trial, and taken up as Point 3 in appellant's brief. Sec. 3662, R.S. 1929; State v. Creighton, 52 S.W. (2d) 562, 330 Mo. 1176. (2) The court did not err in limiting the scope of cross-examination which was for the purpose of effecting the credibility of the State witness, assigned as error in Nos. 10, 11 and 12 in the motion for a new trial and Point 2 in appellant's brief. State v. Riley, 274 S.W. 54; Dunn v. Altman, 50 Mo. App. 239; State v. Ritter, 231 S.W. 608, 288 Mo. 381; Sec. 1727, R.S. 1929; State v. Lee, 128 S.W. 992, 228 Mo. 496. (3) The court did not err in allowing the jury to be informed that the case came to the court on change of venue and on application of defendant, this point being assigned as error in No. 3 of the motion for a new trial, and Point No. 1 in appellant's brief.
Appellant was convicted in the Circuit Court of Gasconade County, on a charge of grand larceny, and sentenced to serve three years' imprisonment in the penitentiary. From this judgment he has appealed.
The alleged theft was committed in Washington County. The charge against appellant was filed in Franklin County, Missouri, on the theory that the property was transported into said county. A change of venue brought the case to Gasconade County where it was tried.
The evidence disclosed the following state of facts: The prosecuting witness, Audis Hulsey, lived on a farm in Washington County. In the spring of 1932, he permitted his cattle to be at large on the free range. The evidence disclosed that Washington County did not have what is commonly called a stock law. Hence, live stock was generally permitted to roam about unrestrained. Appellant was the owner of about 1700 acres of land located in Washington County near the land of Hulsey. Appellant dealt extensively in live stock, generally having on hand a large number of cattle.
About June 1, Audis Hulsey missed five head of cattle. According to the testimony of a witness, named Wilbur Lahmann, who lived in the same neighborhood and was engaged in trucking live stock to market for hire, appellant came to the home of the witness on Sunday, May 22, 1932, and informed him that he, appellant, had "some stuff" he could not handle and needed help. Lahmann agreed with appellant to take a load of cattle to East St. Louis, Illinois, that night. Lahmann further testified that he recognized the cattle as belonging to Hulsey and knew they were stolen. The cattle, five in number, were described in detail, and there was no dispute about the fact that Lahmann had taken five head of cattle, belonging to Hulsey, to the East St. Louis stockyards on May 23, 1932. Lahmann testified defendant, Jasper Crow, accompanied him from appellant's farm, where the cattle were loaded on a truck, to the stockyards; that in payment for the cattle appellant received and cashed a check in the sum of $90, made payable to a fictitious person; that he, Lahmann, received $20 for his part of the deal; that appellant and the witness returned to Washington County in the truck on the evening of May 23. Lahmann testified that on their way to the stockyards with the cattle they drove from Washington County to Highway No. 66, thence to St. Louis, passing through Franklin County, Missouri.
Lahmann and appellant were seen at the stockyards on the early morning of May 23, by Grandvill Eye and Gene Kimberlin, both of whom lived in Washington County and were acquainted with Lahmann and appellant. These men happened to be at the stockyards at the time with a truck load of stock. They were called as witnesses and testified that as they arrived Lahmann was in the act of placing the end gate on the truck and on seeing them immediately drove away; that appellant was near the truck, spoke to the witness and immediately departed. Lahmann testified that when Eye and Kimberlin arrived appellant stated to him, "Get the hell out of here," and appellant did not get on the truck but met him later. Eye and Kimberlin noticed a number of cattle in the stock pen answering the description of the stolen animals.
Appellant denied his guilt and offered evidence of an alibi. Witnesses testified that appellant attended a neighborhood basket dinner on Sunday, May 22; that he was there all day and, therefore, could not have been at the home of witness Lahmann arranging for the taking of the cattle to St. Louis. Appellant testified that he drove to St. Louis on the early morning of May 23, in his car accompanied by a man named Charles Miller; that he and Miller visited the stockyards for the purpose of buying some cattle; that while there he saw Lahmann and also witnesses Eye and Kimberlin. Appellant was corroborated in this evidence by Charles Miller who testified substantially, as did appellant, about the trip to St. Louis. The constable at Sullivan, Missouri, also corroborated appellant. This constable testified that he was on the lookout for stolen cattle on the night of May 22, and saw Lahmann pass through Sullivan with a truck load of stock and also saw appellant pass through there in his car on the early morning of May 23; that he was acquainted with both Lahmann and appellant, recognized them as they drove through and spoke to them.
The reputation of witness Lahmann for truth and veracity and as a law abiding citizen was thoroughly impeached by his own admissions of violations of the law, as well as by the evidence of numerous witnesses to the effect that Lahmann's reputation for truth and veracity was bad. A number of witnesses testified that appellant bore a good reputation prior to the time the charge of larceny was filed against him. On the other hand the State introduced numerous witnesses who testified that prior to that time appellant's reputation for honesty and veracity was very bad. The State also offered evidence in rebuttal that appellant did not attend the neighborhood basket dinner.
[1] Appellant earnestly insists that he could not be legally indicted in Franklin County, Missouri, because...
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