State v. Dozier

• Decision Date: 25 May 1915
• Docket Number: No. 18669.,18669.
• Citation: 177 S.W. 359
• Parties: STATE v. DOZIER et al.
• Court: Missouri Supreme Court

177 S.W. 359

STATE v. DOZIER et al.

No. 18669.

Supreme Court of Missouri, Division No. 2.

May 25, 1915.

Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.

Cole Dozier and Lee Fisher were convicted of killing a hog with intent to steal and convert it to their own use, and they appeal. Reversed and remanded.

Defendants were convicted of killing a hog with intent to steal and convert it to their own use. The jury fixed their punishment at two years in the penitentiary. They have appealed.

The information was against four defendants, Cole Dozier, Oliver (Gramp) Fisher, Lee Fisher, and L. Henson. During the trial the state dismissed as to Gramp Fisher. Henson was found not guilty. Gramp Fisher and Lee Fisher are stepsons of Cole Dozier. Henson married a sister of the Fishers. All of them except Lee Fisher were tenants living near each other in a thinly populated neighborhood where a large portion of the land is un-inclosed woods. Lee Fisher lived part of the time at Doziers, and at other times with his brother Cramp. Near them lived Tom Young, on the land of the Rawson Land Company of which he was foreman. Joe Welch lived with Young. About a half mile from Dozier lived H. R. Hudgins, who appears to have been a tenant. At the time of the trial he was working for Young.

Hogs belonging to Young, Dozier, and various other people in the vicinity ran in the woods, on the open range. On February 7, 1913, Young, Welch, and one Johnson were on a wagon loaded with wood going along a byroad through the woods near Dozier's house. They saw coming towards them all four of the defendants. They Plainly saw that Gramp Fisher was carrying a hog on his shoulder, which had been "dressed or skinned." Young and Welch testified that defendants came on towards the wagon a distance of about 75 or 100 yards from where they were first seen, and to a point in about 80 yards of the wagon, and that as soon as Gramp Fisher saw the people on the wagon he threw the hog down. As to what then occurred, Young, for the state, testified:

"A. Well, they stood there about a minute, something like that, and then Dozier, he came on down meeting us, and Gramp set down behind a bunch of weeds that was dried up there, and Lee Fisher, he had a gun, and he walked out and begun to look up a tree, like he had treed a squirrel and L. Henson run around the tree like he was running the squirrel around— Q. Who run around the tree? A. L. Henson. Q. Who had the gun? A. Lee Fisher. Q. What did they say to you, if anything, any of those defendants at that time? A. There wasn't any of them come close enough to speak except Dozier. He come down and says, `You going to town?' I says, `Yes, sir; he says, `All right, take a drink for me;' I says, `All right, if they ain't got it all drank up.' Q. What did Fisher do immediately after he threw the hog off of his shoulder? A. He stepped behind a bunch of dried-up weeds and sage grass; it seemed like he was trying to hide, he set down—"

Young and Welch both testified that before they got out of sight they saw Gravid, Fisher take the hog on his shoulder and go with his companions towards Dozier's house. In about 30 minutes Young and those with him reached the home of Hudgins, and Young said to Hudgins:

"I seen these fellows come around your field with a dressed hog, and it might be a good idea to go and see about it."

Hudgins went to a point in the woods about a half mile from his house and a quarter from Dozier's house. He testified that about 30 minutes after he started to look for the hog he found "the entrails of a hog, fresh blood where it dripped on the ground, and the hog's hide laying possibly 15 steps away from the entrails, rolled up and dropped in behind a rotten log under some brush."

He also testified that he found the mother of the dead hog about 50 yards away from the spot where the hog was killed. On the following day about noon the sheriff and constable went to the house of Cole Dozier and found some fresh skinned hog meat in a box under the kitchen table. They did not search any other house.

Hudgins testified that the hide which he found was still warm and had no head, ears, or feet on it; that it was the hide off of his hog; that he knew it from the fact that it was red with black spots corresponding with those on his hog; that his hog was one of four, two of which were up in a pen, the other two running out, coming back at night to be fed; that he lost two hogs, but found the hide of only one; that the hog whose hide was found was one which his children rode, and that he took special notice of it; that it was marked with a crop and two splits in the right ear, and weighed about 140 pounds gross. Hudgins testified that Dozier had a black sow, and had borrowed his black and white boar about two years before the alleged offense; that Dozier's hogs ran on the same range with his own; that he did not know whether Dozier had red hogs; that Dozier offered witness $50 if he would not prosecute the case. Dozier, on the stand, denied that he made such offer. No witness except Hudgins identified the hide found as aforesaid as the hide off of a hog owned by Hudgins. Alfred Combs, all of the defendants, and Dozier's wife testified that Dozier owned red and black spotted hogs running on the range, and all the defendants testified that they only killed one hog, and that it belonged to Dozier. Some time after the alleged offense Gramp Fisher's wife, who is a sister of Tom Young's wife, left her husband and went to live at Young's and brought suit for a divorce. She was a witness for the state, testifying that defendants brought two hogs to Dozier's house that day; Dozier bringing one, and Gramp Fisher the other. That Gramp and Lee Fisher took one of them to Gramp's house; that both the hogs were marked in both ears, and that Cole Dozier burned in the stove the head and ears of the hog he brought.

Mrs. Dozier testified that her daughter, Mrs. Henson, took the head of that hog home with her and cooked it.

Defendant Dozier testified that it was not uncommon to skin hogs; that Albert Little killed a lot that way a year before. A witness for the state testified that hogs were never skinned.

Walter Newberry, who lived at Young's house, testified that he heard Lee Fisher say, "We killed two of Ross Hudgins' hogs." Mrs. Young testified that Lee Fisher said: "We killed two hogs too many and got pinched." Lee Fisher, while on the stand, denied both those alleged statements.

Four witnesses on the part of the state were asked as to Dozier's reputation as to being a law-abiding citizen. Two of them stated that it was bad, but none of them stated whether that reputation pertained...