State v. Duncan

• Decision Date: 10 June 1932
• Docket Number: 31742
• Parties: The State v. James Duncan and Grover Duncan, Appellants
• Court: Missouri Supreme Court

50 S.W.2d 1021

330 Mo. 656

The State v. James Duncan and Grover Duncan, Appellants

No. 31742

Supreme Court of Missouri

June 10, 1932

Appeal from Platte Circuit Court; Hon. Guy B. Park, Judge.

Reversed and appellants discharged.

Shultz & Owen and B. M. Lockwood for appellants.

(1) Where, as in this case, the State relies entirely on circumstantial evidence, the evidence is insufficient to warrant conviction. 16 C. J. 1011; State v. Morney, 196 Mo. 43, 93 S.W. 1117; State v. Pritchett, 39 S.W.2d 794; State v. McMurphy, 324 Mo. 854, 25 S.W.2d 79. (2) A verdict based on mere suspicion will not be permitted to stand. State v. Morney, supra; State v Pritchett, supra; State v. Pippin, 36 S.W.2d 914; State v. Carter, 36 S.W.2d 917. (3) Chain of circumstantial evidence, wholly relied upon to warrant conviction, must be unbroken, and circumstances must be irreconcilable with innocence. State v. Pritchett, supra; State v. Morney, supra, and cases cited. (4) The burden is on the State to show that defendants were at the place of the offense, at the time of its commission. State v Taylor, 118 Mo. 153, 22 S.W. 806; State v Woolard, 111 Mo. 248, 20 S.W. 27; State v. Hayes, 301 Mo. 304, 256 S.W. 747; State v. Miles, 174 Mo.App. 181, 156 S.W. 758. (5) No presumption that stolen goods were received within the county can be indulged from the mere fact of recent possession, in the face of uncontradicted evidence that the receipt was in another county. 16 C. J. 542, par. 1026. (6) Instruction stating that defense was an "alibi," when no such evidence was offered was prejudicial error. 1 Randall on Instructions, sec. 333; 16 C. J. 1043 and note 37; State v. Glasscock, 232 Mo. 278, 134 S.W. 549; State v. Jackson, 95 Mo. 623, 8 S.W. 749; State v. White, 189 Mo. 339, 87 S.W. 1188; State v. Harvey, 131 Mo. 339, 32 S.W. 1110. (7) Courts will take judicial notice of whatever is generally known. 16 C. J. 512, par. 949; Ervin v. State (Tex.), 44 S.W.2d 384; State v. Wilson (Mo.), 300 S.W. 710; State v. Miller (Mo.), 300 S.W. 318.

Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.

The demurrer was properly overruled. The evidence, wholly circumstantial, was, under the following authorities, properly submitted to the jury. State v. Poor, 286 Mo. 648; State v. Harris, 22 S.W.2d 802; State v. Hall, 231 S.W. 1004; State v. Henke, 285 S.W. 392; State v. Concelia, 250 Mo. 411; State v. Busby, 289 S.W. 806.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Appellants were jointly indicted by the grand jury of Platte County for the larceny of a corn planter, the property of Frank Foster and of the value of $ 86. Upon trial they were found guilty and their punishment was assessed separately at two years in the State penitentiary. They were sentenced in accordance with the verdict and in due course they appealed. The principal, if not the sole question for our decision is the sufficiency of the evidence to warrant the submission of the case to the jury.

The charge was laid as of April 21, 1930. On that day, Frank Foster, a farmer, living in Platte County just east of the town of Dearborn, left in his field near a public road, a corn planter which he had acquired in trade a few days before. That night, about ten o'clock, one of his sons Luther Foster, returning home from Dearborn, passed along the road near which the planter had been left in the field. He noticed a truck parked on the road next to his father's field. He thought at the time that it was a truck like his own, a Chevrolet. That was why he noticed it. "Q. Was there anything unusual about the truck you say you saw there in the road that night? A. There was nothing unusual. I noticed it was similar to my truck; that is what made me think of it." The truck was unlighted. There was no one in it. The night was dark and there had been a light rain. The next morning Frank Foster looked over his fields and missed the planter. He went to the spot where he had left it in the corn rows at the close of the planting the day before. Marks in the field, made by the planter, showed that it had been moved to the edge of the field to a point overhanging the public road. Other marks in the public road had been made by the wheels of a truck and led to a point near to the tracks of the planter in the field. The facts caused Mr. Foster to judge that the truck had been run up in the ditch to the edge of the field and the planter moved to the body of the truck and carted off. About the marks in the field and in the road were the foot prints of three persons. The marks of the wheels of the truck were traced along the road as far as the main public highway and there were lost. A relative of appellants was Mr. Foster's neighbor on the north. The truck might have gone to or past this neighbor's farm but not necessarily.

On June 6, 1930, Jack Burton and Alva Courtney, living near the Fosters in Platte County, were in Andrew County looking for a cow. As they drove along the highway that day, and were passing the farm of appellant, Jim Duncan, near Amazonia in Andrew County, they saw in the field near the barn a corn planter of the same make as the planter which had disappeared from Frank Foster's farm a month and a half before. Foster's farm in Platte County is about twenty miles in one direction from St. Joseph, and Jim Duncan's place in Andrew County is about eight miles from St. Joseph in the opposite direction. Buchanan County, of which St. Joseph is the seat of government, lies between Platte and Andrew Counties. Burton and Courtney notified Frank Foster of the planter which they had seen in Andrew County, and Foster's sons, Edgar and Oren, went to the Duncan farm, found the planter in the field and identified it as their father's.

There was no one home when the Foster boys visited the Duncan farm the first time, but Jim Duncan was there when they returned later with an Andrew County officer and a search warrant. In the direct testimony of Edgar Foster, the following occurred: "Q. What was the conversation that took place there with Jim Duncan at his door? A. We asked if he had a corn planter, I believe.

"Q. What did he say? A. He said that there was not any there.

"Q. Then what did you do? A. We told him we had a search warrant and wanted to look around.

"Q. Did he say anything about that? A. No, sir, he said for us to look."

When the Fosters found and seized the planter, Jim Duncan said that he had borrowed it from his brother, Grover. The planter when seized was in plain view of the public road near the barn. Jim Duncan, in his own behalf, testified that when the visitors arrived they inquired if he had a planter. He answered that he had a John Deere. They said they had a search warrant for an International, and he "told them to go ahead and look for it." At the time of the seizure of the planter under the search warrant, Jim Duncan had been on the farm in Andrew County for ten years. The finding of the planter on Jim Duncan's farm six weeks after it had been taken from Frank Foster's farm, and the conversation between Foster's sons and Jim Duncan made up the State's case against appellant, Jim Duncan.

The case against Grover Duncan rests almost exclusively on the testimony of John W. Coots, Jr., the prosecuting attorney of Platte County, who represented the State at the trial of the appellants. This testimony related to certain admissions of Grover Duncan and also to a Chevrolet truck owned by him. The testimony of Mr. Coots in the nature of admissions by Grover Duncan was that, about six weeks after the theft of the corn planter had been reported, Mr. Coots was in Dearborn in Platte County. James Duncan was then under bond. "Grover Duncan came up to me," testified Mr. Coots, "and said: 'Won't you let James go?' And I said: 'Why?' And he said: 'It was not his corn planter. He didn't have anything to do with it.' -And he said: 'It was my corn planter and I let him borrow it.' I said: 'Where did you get the corn planter?' And he said: 'I bought it from a negro in St. Joe down on Fourth Street one night.' I said: 'What is the negro's name?' He said: 'I never saw him before.' I said: 'Do you know where he is now?' And he said: 'I don't know.'" Grover Duncan, on his own behalf, testified that he bought the planter from a negro named Will Long, living near Elwood, Kansas, for $ 65 in the farm implement section of Fourth Street, St. Joseph, Missouri, in the day time, while he, Duncan was there to buy a plow. He also testified that, in his conversation with Mr. Coots at Dearborn he told the prosecuting attorney the name and address of Long. Frank Foster, the owner of the stolen planter, called in rebuttal by the State, testified that he was present at the conversation at Dearborn between Grover Duncan and the prosecuting attorney; that Mr. Coots did not inquire the name of the negro from whom Duncan said that he had bought the planter, and that Duncan did not tell the name.

The testimony of Mr. Coots about the truck was as follows "I observed Grover Duncan driving a motor truck upon two or three occasions, and he left it out in front of the courthouse one time, and I pointed it out to Mr. Ketchum and the Foster boys, who testified a moment ago, and they examined the tires of it." Just when Constable Ketchum and the Foster boys examined the tires of Grover Duncan's truck while it stood in front of the courthouse in Platte City, the seat of Platte County, the record does not directly disclose. But there are strong inferences that they made the examination about the time of the conversation between Prosecutor Coots and Grover Duncan, namely at least six weeks after the planter was taken. Oren Foster looked at the tracks of the truck in the...