State v. Currier

• Decision Date: 12 February 1910
• Citation: 225 Mo. 642,125 S.W. 461
• Parties: STATE v. CURRIER et al.
• Court: Missouri Supreme Court

125 S.W. 461

225 Mo. 642

STATE v. CURRIER et al.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

1. INDICTMENT AND INFORMATION (§ 72) — DISJUNCTIVE ACTS — CONJUNCTIVE ALLEGATION.

Where a statute on which an indictment is founded enumerates the offenses, or the intent necessary to constitute such offenses, disjunctively, the indictment must charge such acts conjunctively, where they are not repugnant.

2. INDICTMENT AND INFORMATION (§ 125) — DISJUNCTIVE ACTS — CONJUNCTIVE ALLEGATIONS.

Rev. St. 1899, § 1987 (Ann. St. 1906, p. 1332), provides that every person who shall willfully and maliciously kill, maim, or wound any animals of another shall, on conviction, be punished, etc. Held, that an indictment charging that defendants did feloniously, etc., shoot, wound, and kill certain cattle, to wit, four heifers, two cows, and one steer, etc., by then and there shooting the cattle, thereby causing divers wounds on the head, body, and legs of the cattle, of which wounds three of them then and there died, etc., was not objectionable for misjoinder of offenses, as charging malicious wounding and malicious killing of the cattle, under the rule that where a statute makes the commission of certain acts named therein in the disjunctive a crime, all of the several acts may be charged conjunctively in one count which will be sustained by proof of one of the offenses charged.

3. CRIMINAL LAW (§ 936) — NEW TRIAL — OBJECTIONS NOT RAISED AT TRIAL.

An objection that the prosecuting attorney purposely refrained from indorsing the name of a material witness on the indictment to surprise defendants could not be raised for the first time in a motion for new trial.

4. CRIMINAL LAW (§ 687) — TRIAL — REOPENING CASE.

In a prosecution for killing cattle, it was not error to refuse permission to open the case after the testimony was closed to permit defendants to introduce the ex-prosecuting attorney and the ex-sheriff to testify that they frequently saw the persons to whom the cattle, alleged to have been killed, belonged, after the witness S. claimed he informed them that he had seen defendants do the shooting, and that neither of such owners gave the ex-prosecuting attorney and ex-sheriff any information regarding the matter; the introduction of further testimony being within the discretion of the trial court.

5. CRIMINAL LAW (§ 951) — NEW TRIAL.

Under Rev. St. 1899, § 2689 (Ann. St. 1906, p. 1587), requiring a motion for new trial to be filed before judgment, and within four days after verdict, a motion filed the day after judgment and sentence was too late.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

George A. Currier and another were convicted of maliciously killing cattle belonging to certain others, and, from such a conviction, defendants appeal. Affirmed.

R. S. Hogan and Green & Green, for appellants. E. W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen., for the State.

BURGESS, J.

On the 11th day of February, 1909, the grand jury of Howell county returned into open court an indictment charging the defendants with feloniously, willfully, and maliciously shooting and killing three cattle, the property of George Rothwell, W. M. Ulrich and J. H. Soots. At the March term, 1909, of the circuit court of said county the defendants filed a motion to quash the indictment, which motion was overruled, and they thereupon entered their plea of not guilty, and went to trial. They were found guilty of the offense charged, the jury assessing their punishment at a fine of $50 each. Judgment and sentence were entered accordingly. Defendants thereafter filed motions for new trial and in arrest of judgment, which having been overruled, they appealed.

The defendants, as the evidence shows, were stockholders in a corporation owning a farm of 1,600 acres in Howell county, and which was called the "Gregmore fruit farm." This farm was managed by one Herman Utterman, who, with his family, lived thereon. The defendants resided in the city of St. Louis, but went to the farm, stopping at the home of Mr. Utterman, on the Wednesday preceding Sunday, the 11th of October, 1908, the date of the alleged offense, and stayed there until the following Monday. Reports of firearms were heard by neighbors, between 2 and 3 o'clock on the afternoon of Sunday, October 11, 1908, the sound coming from the direction of the Gregmore fruit farm. That evening W. M. Ulrich discovered two of his cows in a maimed condition, and, upon examining them, found that they had been shot. Accompanying his cattle were two belonging to J. H. Soots which also were wounded and maimed in like manner. He picked out some of the shot, imbedded in the flesh of the animals, the shot being of different sizes. On the following day two cattle were found dead from gunshot wounds on the Gregmore farm, one of which belonged to Ulrich, and the other to Soots. A few days later Mr. Soots found another one of his cattle lying dead on said farm, it having been killed in the same way. About seven other cattle, belonging to different parties, were found maimed from gunshot on the Gregmore farm. Near where the dead cattle were found were a number of empty No. 12 cartridge shells, which were different from those commonly used by the people of the neighborhood, in that the paper part was red and the shells had more brass than those ordinarily used there. Where the dead cattle were found was about a half mile west of the main buildings on the Gregmore fruit farm. Ed Stites, a witness for the state, testified that he was riding through the Gregmore farm on the afternoon of the Sunday in question, in search of a cow of his which had strayed away some months before, and that, between 2 and 3 o'clock of that afternoon, he saw the defendants shooting cattle on the farm; that he saw Moore shoot first, and that Moore then called to Currier, who was some distance away, to come and help him shoot; that Currier came up and began shooting; that the defendants fired about 25 times; that from the reports of the guns he thought one was a rifle and the other a shotgun. Upon cross-examination, the witness stated that he did not immediately tell anybody about what he saw, but that as soon as he learned whose cattle had been shot he told Mr. Ulrich about it; also, that just before the trial Ulrich or George Rothwell told him not to tell defendants' counsel anything he knew about the matter. The evidence also showed that defendant Currier, on Monday evening, October 12, 1908, at the town of Olden, while eating supper at a hotel there, in discussing the stock law and the trespassing of stock in the yard of the hotel, said to the proprietor of the hotel: "Do them like we do. There was some cattle trespassing upon us, and we just took our guns and shot them." Two witnesses, H. C. Hopkins and John Keithley, testified as to this conversation and the remarks made by the said defendant, their testimony being substantially the same.

Theodore Boss testified for the state that he moved into a house on the Gregmore fruit farm on the Sunday in question; that the house he occupied was about 200 yards from the main buildings on the farm; that about 2 o'clock that afternoon he went over to the house occupied by Mr. Utterman, and saw the defendants sitting under a shade tree in the yard; that he returned to his house and shot off an old cannon which he had there, and that between 2 and 3 o'clock, the same afternoon, he heard a number of shots fired west of where he lived, but that he did not know who fired them.

The defendants offered evidence to...