State v. Durbin

• Decision Date: 11 June 1930
• Docket Number: 30523
• Citation: 29 S.W.2d 80
• Parties: STATE v. DURBIN
• Court: Missouri Supreme Court

29 S.W.2d 80

STATE v. DURBIN

No. 30523

Supreme Court of Missouri, Second Division

June 11, 1930

W. H Martin, of Boonville, for appellant.

Stratton Shartel, Atty. Gen., and Walter E. Sloat and Ray Weightman Asst. Attys. Gen., for the State.

OPINION

COOLEY, C.

Appellant was charged by information in the circuit court of Cooper county with having stolen, on August 25, 1929, in the nighttime, twenty-four chickens, the property of Lee Wolfe, from the messuage of said Lee Wolfe. Upon trial he was found guilty as charged, and, from sentence and judgment upon the verdict, he appeals.

The only question urged for our consideration is the sufficiency of the evidence. It is earnestly urged by appellant that the evidence was not sufficient to justify submission of the case to the jury or to sustain the verdict. This contention requires a full statement of the pertinent evidence, which is brief.

Lee Wolfe testified that at the time in question he lived on a farm and worked at night at the Blackwater Stone Company, fifteen miles distant; that he knew defendant and saw him at the Blackwater Stone Company on the night of August 23, 1929, defendant having worked there that night. As to his ownership of chickens, the disappearance of some of them, their description, and their location when stolen, his testimony was as follows:

'Q. On the 25th day of August did you have any chickens at your place? A. Yes, sir.

'Q. Did you see your chickens on the 25th day of August? A. Yes, sir.

'Q. What was the occasion of your seeing them? A. I saw them before I went to work, -- at feeding time.

'Q. About what time of the day was that? A. Late in the evening, near night.

'Q. What was the condition of the chickens as to being all there or not being there? A. They seemed to be all there. (Our italics.)

'Q. Did you see the chickens in the morning? Next morning? A. Yes, sir.

'Q. What was the condition as to being there or not being there? A. About twenty-four short.

'Q. What kind of chickens? A. All hens, Rhode Island Reds.'

He further testified that defendant lived at Pilot Grove about two miles east of his home; that he (Wolfe) did not count his chickens on the evening of August 25th, but had counted them the day before; that twenty-four were gone, 'the best I could tell,' on the morning of the 26th. He never saw them again.

Edgar Brandeis, manager of the Farmers' Elevator at Bunceton, southeast of Wolfe's farm, how far is not shown, bought from defendant and another young man twenty Rhode Island Red hens on the morning of August 26, 1929. He found 'these boys' at the elevator about 6 or 6:30 in the morning when he arrived, bought the chickens, and that evening or the next day shipped them with other poultry to Sedalia. Defendant gave the name of Fred Armstrong, and the check for the chickens was made payable to Fred Armstrong. Brandeis took the license number of the Ford roadster in which defendant and his companion rode, which was later found by the sheriff to be the number on a Ford car in defendant's possession when arrested. Brandeis gave no description of the chickens he bought from defendant other than that they were Rhode Island Red hens. He did not know whose they were. He testified that there were 'any number' of farmers in the county 'around Pilot Grove and Bunceton and everywhere' who raised Rhode Island Red chickens, and that it was an everyday occurrence for him to receive such chickens.

The sheriff testified that he went to defendant's home and arrested him on September 9th. Defendant gave his true name; the sheriff not then knowing him. When told by the sheriff that he had a warrant for him, defendant asked: 'For what?' Being informed it was 'for selling chickens at Bunceton,' defendant said he had never been to Bunceton.

Another witness testified that he lived near defendant during the last few months prior to defendant's arrest and that during that time defendant did not have any chickens.

Defendant offered no evidence, but stood upon his demurrer.

The state concedes that the question of the sufficiency of the evidence is close, but argues that there is enough to make a submissible case. Its chief reliance is placed upon our decision in State v. English, 308 Mo. 695, 274 S.W. 470. That case, like the one now before us, was one of larceny of chickens in the nighttime in which the evidence was circumstantial. But it is quite apparent from the facts stated in the opinion that a much stronger showing was made in the English Case. Not only was there a much more satisfactory identification of the chickens sold by the defendant the morning after the larceny as being the stolen chickens, but there were other significant circumstances shown tending to connect defendant with the crime. The facts in the instant case, in our opinion, fall far short of measuring up in probative value to the facts shown in the English Case. A greater disparity exists between the facts shown here and those appearing in State v. Barker (Mo. Sup.) 18 S.W.2d 19, cited by respondent. In other cases relied on by respondent, State v. Standifer, 316 Mo. 49, 289 S.W. 856, and State v. Dummitt, 318 Mo. 1185, 2 S.W.2d 731, the stolen chickens were recovered and positively identified by the owners. None of the cases cited and relied on by respondent on this point is authority for holding sufficient the evidence in this case.

State v. Matticker (Mo. Sup.) 22 S.W.2d 647, in the facts and principle of law involved, is analogous to the instant case. In the Matticker Case some 3,000 loaded shotgun shells were stolen. Later thirteen boxes of shells of the same make and exactly similar were found in defendant's possession. The defendant, while denying that he had stolen the shells, offered to pay for them if the prosecution were dropped. In holding the evidence insufficient to support the verdict, this court said:

'There are circumstances in this case from which the jury might reasonably have drawn the inference that the shells found in appellant's house and automobile were part of the shells taken from the clubhouse building, because they were trap shells from the same manufacturer and of the same appearance size, and loading as those taken. But, having found such fact of identity by inference, the jury would not be authorized to build upon such inferred fact of identity the further inference that appellant was the thief, merely because he had such shells in his possession soon after they were stolen. In the absence of proof, other than that by inference, that the shells found in appellant's possession were part of the shells taken from the clubhouse, appellant was under no duty...