State v. Cunningham
| Decision Date | 20 December 1930 |
| Docket Number | 30553 |
| Citation | 33 S.W.2d 930 |
| Parties | STATE v. CUNNINGHAM |
| Court | Missouri Supreme Court |
Henry P. Lay, of Warsaw, and W. D. O'Bannon, of Sedalia, for appellant.
Stratton Shartel, Atty. Gen., and Ray Weightman, Asst. Atty. Gen., for the State.
In an information filed in the circuit court of Benton county defendant was charged with the larceny of six hogs. On a trial defendant was found guilty by the jury, and his punishment affixed at two years in the penitentiary. From the judgment entered on the verdict, he appealed.
The evidence submitted by the state warrants the finding that about December 1, 1928, or shortly thereafter, Elbert (Bud) Wilson, whose business was that of buying, feeding and selling hogs and cattle, purchased from George Hoskins twelve red hogs, weighing approximately 160 pounds. Wilson's feed lot, comprising an acre and a half, was located on the Fairfield-Warsaw road, a mile and a quarter from Fairfield and he placed the hogs in said feed lot. On a visit to the pasture of his son, Harley Wilson, he discovered three of said hogs purchased from Hoskins therein. He then returned to his feed lot, and, upon examination, he found that all the hogs purchased from Hoskins were missing from his feed lot. Thereupon he tracked six of the missing hogs to Fairfield. Of the twelve hogs purchased from Hoskins, five had their tails bitten off, one had a small scar on the head, and one had an ear three-fourths gone, with the remaining portion crinkled. Wilson first discovered that the hogs were missing on the Monday before Christmas. On December 31, 1928, he found six of the hogs in Norman Newkirk's pasture. Wilson and his son identified the six hogs found in Newkirk's pasture as among those purchased by him from Hoskins, and among them the one with a small scar on the head. Without the knowledge of Newkirk, Wilson and his son drove the hogs from Newkirk's pasture to Wilson's feed lot.
In explanation of his possession of the hogs, Newkirk testified that on December 24, 1928, defendant accosted him, inquiring the value of stock hogs. On defendant advising him that he had six hogs weighing from 160 to 170 pounds, Newkirk told him that he had just taken some nice ones in at seven and a quarter. Defendant replied, 'Is that all they are worth?' and witness answered, 'I think it is on the market.' Newkirk then said to defendant that if defendant sold him the hogs to unload them near, but not in, the stockyards, as he wanted to put them in his feed lot, which was accordingly done. Newkirk, on December 24, 1928, purchased said hogs from defendant and paid him $ 70.32 for them.
After Wilson drove the hogs from Newkirk's feed lot or pasture, Newkirk, while on his way to interview Wilson, met defendant. On negotiating for the sale of the hogs, defendant advised Newkirk that he had raised them, and he reiterated that fact when Newkirk met him on this occasion, and later said the same thing in the presence of Wilson on their meeting him. Newkirk and defendant then boarded Wilson's car and Wilson drove them to his feed lot. In the presence of Newkirk and defendant, Wilson claimed and identified the six hogs as belonging to him. The next day defendant and his father went to see Newkirk, and then asked him if he would be satisfied if he got his money back. They said they would rather pay it than have a lawsuit and make Wilson sore, whereupon defendant gave Newkirk a check for $ 75, and upon Newkirk asking him what he wanted Newkirk to tell Wilson, defendant replied, 'Tell him I found the hogs to keep talk down.'
The gist of defendant's evidence was that, as driver of a mail bus from Warsaw to Sedalia and return, he met and conversed several times with a man by the name of Nelson. Defendant owned a Chevrolet truck with which he was accustomed to truck for hire. He also owned stock and worked on his father's farm to some extent. Nelson approached defendant on one of these trips and advised him that he expected to have a lot of hogs on the scale at Fairfield, and he wanted defendant to load the hogs, take them to Warsaw and sell them and take the money in defendant's name, because Nelson owned a note at the bank, and, if the bank found him with money, he would be importuned to pay the note. Defendant stated that he had searched for Nelson, but he had been unable to discover his whereabouts.
Defendant further said that he did not know that they were Wilson's hogs; that Nelson, without describing or advising him of the color of the hogs, told him there would be four or five hogs in the stock lots in Fairfield, and for defendant to sell them; to take the money in his name and pay it to Nelson, for which Nelson was to pay him $ 5. Later, he turned the money over to Nelson, except $ 5, in Lohman's restaurant in Sedalia. Defendant's witness, Ficklin, testified that he had seen Nelson on the bus in conversation with defe...
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