State v. Dilley
| Decision Date | 01 December 1934 |
| Citation | 76 S.W.2d 1085,336 Mo. 75 |
| Parties | The State v. Wilbert Dilley, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court; Hon. Ralph Hughes, Judge.
Reversed and remanded.
M E. Pangburn and Davis & Davis for appellant.
(1) There is no evidence that defendant was present at the time and place where the larceny was committed. This is absolutely necessary to a conviction. State v. Duncan, 50 S.W.2d 1023; State v. Harvey, 131 Mo. 346; State v. Tatlow, 136 Mo. 684; 20 A. L. R. 1128. Upon the evidence, the court should have instructed the jury to find defendant not guilty. State v. Scott, 177 Mo. 673. (2) The conviction cannot stand on the circumstantial evidence offered because the facts and circumstances relied upon are not irreconcilable with the innocence of defendant. All of such facts may be true and yet defendant be innocent. That being true, the conviction cannot stand. State v McMurphy, 25 S.W.2d 82; State v. Spires, 65 S.W.2d 1058; State v. Capps, 311 Mo. 699; State v. Buckley, 309 Mo. 48; State v. Ruckman, 253 Mo. 487. A conviction based solely on suspicion will not be permitted to stand. State v. Spires, supra; State v Singleton, 294 Mo. 364; State v. Shields, 58 S.W.2d 298; State v. Pinto, 312 Mo. 106; State v. Tracy, 284 Mo. 619. (3) The court should have instructed the jury that the State must show, beyond a reasonable doubt, that defendant was present when the larceny was committed. State v. Harvey, 131 Mo. 346. (4) The so-called evidence of flight did not show that defendant fled for the purpose of avoiding prosecution. This is necessary before it could be considered. It was not sufficient to sustain a conviction. Wharton's Criminal Ev., sec. 750; Alberta v. United States, 162 U.S. 511, 40 L.Ed. 1051; Ryan v. People, 79 N.Y. 601. (5) The entire evidence having been developed and there being no evidence of defendant's guilt, the judgment should be reversed and defendant discharged. State v. Singleton, 294 Mo. 364.
Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.
(1) The court did not err in the admission of testimony by Miller Howard and Grover Lingenfelter as to the flight of the appellant. State v. Cade, 34 S.W.2d 82; State v. Merricks, 18 S.W.2d 23; State v. Stogsdill, 23 S.W.2d 22. (2) The court did not err in refusing a new trial because of the alleged misconduct on the part of counsel for the State. State v. Stogsdill, 23 S.W.2d 22; State v. Parker, 24 S.W.2d 1023; State v. McVey, 66 S.W.2d 857.
The appellant was convicted of grand larceny in the Circuit Court of Clay County and his punishment assessed by a jury at two years' imprisonment in the State penitentiary. The charge was that he stole fifteen head of hogs of the value of $ 45 belonging to one Miller Howard. His motion for a new trial in the circuit court preserves only two assignments of error: (1) that there was no substantial evidence to support the verdict; (2) that the court erred in admitting certain testimony concerning his flight when approached by the officers at the time of his arrest. These points have been briefed by his counsel in this court.
Mr. Howard had twenty small red shoats weighing about seventy pounds each, on a farm near the northwest corner of Clay County. He last saw them on Sunday, January 22, 1933. The following day he had them vaccinated by a man named Lingenfelter but was not present at the time. There is no evidence that the hogs were seen by anybody the next day, Tuesday; but on Wednesday, January 25, when Howard went to the farm fifteen of the shoats were missing. He immediately began an investigation which developed that on that same day the fifteen shoats had been sold by a man named Earl Douglas to a man named Elmer Reed who lived in the northwest part of Daviess County more than fifty miles away.
The appellant, Dilley, also lived in the northwest part of Daviess County near Pattonsburg, as did another man named Harry Nance. Mr. Nance testified that about an hour and a half after sunrise on the Wednesday morning aforesaid the appellant and Douglas drove out to his farm about five miles south of Pattonsburg. The defendant introduced Douglas to Nance giving his name as Brown. They had eight head of the hogs in the back part of an automobile coupe and said they had some others they had not brought with them. There is no evidence as to which of the two men owned or controlled the automobile. Continuing, in answer to the prosecuting attorney's question as to what "they" said, this witness Nance testified concerning the statements then and there made by the appellant and Douglas, as follows:
Mr. Nance said Douglas and the appellant left and returned in about an hour with the other seven pigs and unloaded them at his farm. All the hogs were weighed and then Nance went to his house to write a check in payment for the hogs. He asked Douglas, or "Brown" what his given name was and the latter replied "John." Nance then asked him where he lived and Douglas replied he lived about eight miles north of Coffey, which is a small town in the north part of Daviess County. When Mr. Nance went into the house to write out the check he telephoned the banker at Coffey and asked him if he knew a John Brown living eight miles north of there and the banker said he did not. So when Nance returned to the yard where the appellant and Douglas were waiting, he told them of his conversation with the banker and asked Douglas to give him some references he could call up. Douglas said he had lived in the neighborhood of Coffey only about eight months and hadn't got acquainted much and didn't have a telephone. Nance then named two or three men living in the neighborhood of Coffey but Douglas didn't know any of them. So Nance said he would meet them in Pattonsburg later in the morning and if they could find some one who would identify "Brown" he would pay for the hogs. Douglas and Nance did meet in Pattonsburg later the same morning, and the former made further unsuccessful attempts to satisfy Nance that he was John Brown and lived near Coffey. The sale was called off and Douglas said they would go out to the farm and get the hogs. The appellant was not present during any of the conversations in Pattonsburg.
Mr. Elmer Reed, who purchased the hogs, testified that on the same morning, about eleven thirty o'clock, the appellant asked him if he would buy a bunch of shoats. The witness says he replied that he would look at them after dinner and asked where they were. The appellant answered they were about three or four miles over south. After noon Reed says the appellant pointed out Douglas to him and said "there's the man that owns the hogs," but did not go with or introduce him to Douglas. Douglas brought the hogs into Pattonsburg in a truck, told Reed he owned them and said he had forty more about like them that he wanted to sell. Reed brought the fifteen hogs from Douglas, gave him a check for them, and Douglas delivered them at his farm. The appellant did not participate in the sale negotiations and the pay check was made out to Douglas alone.
Evidently some information concerning the appellant's connection with the sale of the hogs was communicated to the officers. At any rate on the following day, Thursday, Mr. Howard, the owner of the hogs, his son Carl Howard, Sheriff Pence of Clay County and his son, and Mr. Lingenfelter, who had vaccinated the hogs, all went up to Pattonsburg where they were joined by Sheriff Hutchinson of Daviess County and Constable H. B. Dilley, who was a third cousin of the appellant's. They drove out to the home of the appellant in the country in two automobiles. When they got within about an eighth of a mile of the house they had to stop because of a mudhole in the road.
Mr. Miller Howard, Constable Dilley and Sheriff Hutchinson, who were in the front one of the two cars testified that at or about the time they reached the mudhole they saw the appellant come out in front of his house, and when their automobile stopped he went back into the house and ran out the entrance on the other side with his overcoat. He continued on south through the barn lot to a patch of timber about a fourth of a mile long and ran on through the timber. They followed him by his footprints until they came in sight of him and finally overtook him about three-fourths of a mile from his home. All these witnesses agreed that the appellant ran when he left the house and in his course through the timber, but he was walking when they overtook him. Constable Dilley said the appellant "had run about as far as he could run." The constable, who was sixty-three years old and was wearing an overcoat and a pair of heavy overshoes said he, too, was winded. Counsel for appellant argue in their brief that he couldn't have been making a serious effort to escape, else he would have outrun the old Constable with his heavy clothing in a three-quarter mile chase through the hills in a wooded country with a start of more than 200 yards. When the appellant was overtaken his only explanation of why he had...
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