State v. Culbertson
| Decision Date | 06 September 1934 |
| Docket Number | 5431 |
| Citation | 74 S.W.2d 375 |
| Parties | STATE v. CULBERTSON. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Shannon County; Will H. D. Green, Judge.
“ Not to be reported in State Reports.”
Chilton Culbertson was convicted of petty larceny, and he appeals.
Reversed, and defendant discharged.
Barton & Moberly, of Houston, for appellant.
Defendant was charged with the crime of burglary and larceny by information filed in the circuit court of Shannon county, on the 28th day of April, 1933.
The information charged that defendant, on or about the 2d of April 1933, at the town of Bartlett and county of Shannon, did feloniously and burglariously break into and enter a certain store building owned by one J. L. Webb, and did steal, take, and carry away eleven gallons of gasoline in said building of the value of $1.87. Under said information the cause came to trial at the May term, 1933, of said court. The jury found defendant guilty of petit larceny, and assessed his punishment at a $25 fine. From this verdict and judgment defendant has appealed.
Error is assigned on the ground that there was a variance between the allegations of burglary and larceny contained in the information and the proof adduced by the state. No attempt was made by the state to prove that any building, referred to in the information, was broken into.
The prosecuting witness, who operated a gasoline filling station at Bartlett, had in operation two gasoline pumps on the outside and in front of the station building, which pumps were so situated as to permit cars to drive on either side. The pumps were not inside of any building. The evidence tended to establish that a lock on one of the pumps had been broken and the ethyl bowl, containing slightly more than ten gallons of gasoline, had been drained and the hose connected with the bowl thrown to the ground.
J. L. Webb, the prosecuting witness, testified, in substance, that he opened his place of business about 5 a. m. on Sunday morning, April 2, 1933, and pumped the bowls full; that he lived with his mother in her residence situated about 100 yards from the station; that on the day in question he remained at the station until 6:10 a. m., when he went to the house for breakfast, and that, as he went in the door, a car pulled up at the station; that he saw the car as he sat down at the table; that the car was a green Chevrolet four-door sedan, and had two young men in it, bare-headed; that he intended to eat his breakfast before he went back to the station, but finally decided to quit his breakfast and take care of the car; that, when he was within possibly 100 feet of the station, the car pulled hurriedly away; that he obtained the license number of the car, which was 454107, Mo. 1933; that, after he arrived at the station, he discovered that the lock had been broken and the tank drained, and he then immediately followed the car and got close enough to make sure of the license number, but never recognized either of the two young men in the car.
On cross-examination it appeared that, when he first saw the car, he remembered only the first three figures of the license number, i. e., "454," but succeeded in getting close enough to the car to make out the other three numbers, i. e., "107," and then saw the occupants of the car, and, although he knew Culbertson, the defendant, he was unable to recognize either of the two young men in the car as the defendant, because their backs were turned.
John Wilbur testified that he lived about one mile east of Bartlett, but not in sight of the filling station in question; that he attended a dance on April 1st, returning home after sunup on April 2d; that fifteen or twenty minutes after he arrived home two young men driving a Chevrolet car stopped at his place and asked if he could spare some gasoline so that they could get to a filling station; that upon investigation he told them that they could, and that he then gave them one-half gallon of gasoline, for which they paid, and whereupon they drove away; that he did not know whether the car stopped at the Webb filling station or not.
Will Humphreys testified that he operated a filling station on Highway No. 60, about 4 ½ miles west of Bartlett; that about 6:30 on the morning of April 2, 1933, defendant and another young man drove up to his filling station, put air in a tire, and told him that Jess Webb’s filling station had been broken into; that they were driving a light green, four-door Chevrolet; that there were many green-colored Chevrolet cars in use at that time.
Charley Akers, sheriff of Shannon county, testified that on the 4th or 5th of April he went to Springfield, Mo., and there took the defendant from the police station and brought him back to Eminence; that he saw a green automobile in the city of Springfield, took the plates off, and that the numbers were 454107; that he did not see defendant in this car and did not know where defendant was arrested or where the car was found; that defendant told him that he was not driving the car on the morning of the alleged larceny; and that he did not rob the station nor drive the car to Springfield, although he had driven the car from a Mrs. Young’s to Eminence at one time, a distance of about one mile.
On behalf of defendant there was evidence that he attended a dance near Eminence on the night of April 1st, and remained there until 5:30 or 6 of the morning of April 2d. A Mr Martin Mathison testified that he operated a filling station on highway No. 60, at Mountain View, Mo., at a distance of about 15 miles from Bartlett where the alleged crime was committed; that defendant purchased six gallons of gasoline from him at his station between 7 and 8 o’clock on the morning of April 2d; that he kept a ticket of this sale and showed it to the sheriff when the sheriff was...
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