State v. Dummitt

• Decision Date: 18 February 1928
• Docket Number: 28612
• Parties: The State v. Arthur Dummitt, Appellant
• Court: Missouri Supreme Court

2 S.W.2d 731

318 Mo. 1185

The State v. Arthur Dummitt, Appellant

No. 28612

Supreme Court of Missouri

February 18, 1928

Appeal from Lawrence Circuit Court; Hon. Charles L. Henson Judge.

Reversed and remanded (with directions).

North T. Gentry, Attorney-General, and A. B. Lovan Assistant Attorney-General, for respondent.

(1) The information is in the language of the statute and is sufficient. Sec. 3314, R. S. 1919; State v. Cooper, 246 S.W. 892. (2) While the evidence is circumstantial, it is sufficient to justify the verdict of guilty rendered by the jury. State v. Hefton, 213 S.W. 443. (3) The record will show that no error was committed in admitting incompetent testimony, or in rejecting competent testimony. Moreover, there are no proper assignments of error on these points. The assignments fail to meet the requirements of Sec 4079, Laws 1925, page 198. State v. Gensler, 295 S.W. 1082. (4) There was no exception or objection to the argument. It does not appear by the record or bill of exceptions that such argument was made. In order that an improper argument may be considered on appeal, "an objection thereto must be made at the trial and a ruling had thereon." 38 Cyc. 1507; State v. Baker, 175 S.W. 67. (5) Other matters complained of are not preserved in the bill of exceptions. "This court will not review the acts of trial courts upon unsupported allegations in motions for new trial." State v. Jewell, 90 Mo. 467. "Allegations made in the motion for new trial, as to error having been committed, do not prove themselves." State v. Foster, 115 Mo. 451. (6) "The matter of granting a continuance rests largely in the discretion of the trial court, and its action will not be disturbed unless it is obvious that its discretion has been oppressively exercised." State v. Wilson, 242 S.W. 887.

OPINION

Blair, J.

By an information filed in the Circuit Court of Barry County, appellant was charged with the felony of stealing chickens in the nighttime from the premises upon which the dwelling house of the owner was situated. A change of venue was granted to Lawrence County, and there appellant was tried and found guilty. He was sentenced to imprisonment in the county jail for six months and to pay a fine of fifty dollars, in accordance with the verdict of the jury, and has appealed from such judgment.

As it is not contended that the evidence did not authorize submission of the case to the jury, a very brief statement of the facts will suffice. Mrs. Mary Moss lived on her farm in Barry County a few miles southeast of Monett. Her son, Luther Tate, who was unmarried, lived with her. She had a number of chickens, including some of the Rhode Island Red and Plymouth Rock varieties. Hens and young chickens of frying size were included in the flock. Mrs. Moss's chickens roosted about the trees and fences and in boxes, etc., within the fence inclosing the premises occupied by her dwelling house.

A number of chickens, which were there the night before, were missed by Mrs. Moss at feeding time on the morning of June 27, 1925. She and her son went to Monett that day and looked over a number of chickens in the yard of a local produce house. A number of chickens were there identified by Mrs. Moss as her property. Tate identified one of the chickens particularly which was marked and colored in an unusual manner. The following day the officers took to Mrs. Moss's home the chickens which she had claimed as her own. On being turned loose in the yard, the young chickens immediately answered the call of an old mother hen in charge of the portion of her brood remaining after the theft, and these chickens at once joined the family circle and were taken in and accepted as part of the family. The others also appeared to be at home.

The Monett produce merchant testified that the chickens turned over by him to Mrs. Moss had been purchased by him from appellant the morning after they were missed by Mrs. Moss. Appellant was arrested by an officer that same morning on some other charge before the officers knew that any chickens had been stolen from Mrs. Moss. Two sacks, bearing evidence of having contained chickens, were found in the Ford roadster appellant was driving. In fact, appellant admitted selling the chickens at the produce house. When arrested he first told the officers that the chickens belonged to one Claud Beemer.

At the trial appellant testified that Luther Tate, Mrs. Moss's son, had asked him to sell the chickens for him, as he did not want his mother to know that he was selling them, although appellant testified that Tate claimed to own the chickens. Appellant said that Tate agreed to procure the chickens and leave them in the woods at a designated spot, and that appellant agreed to get them and take them to town and sell them and to use the proceeds to buy a sack of corn chops and as much sugar as the remaining money would buy. All testimony of this sort was denied by Tate. This proof, together with some rather indefinite evidence about a copper boiler being repaired, was doubtless introduced to leave the impression with the jury that Tate was engaged in making whiskey.

The State offered evidence tending to prove that appellant's reputation for truth and veracity was bad. The State was also permitted, without objection on the part of appellant, to show that Tate bore a good reputation for truth and veracity. If other facts need to be stated, they will be detailed in connection with our consideration of the errors charged to have been committed by the trial court.

The evidence tending to show the presence of the chickens at sundown on June 26th on the premises on which the dwelling house of Mrs. Moss was...