State v. Emry

• Decision Date: 04 June 1929
• Docket Number: No. 29184.,29184.
• Citation: 18 S.W.2d 10
• Parties: STATE v. EMRY.
• Court: Missouri Supreme Court

18 S.W.2d 10

STATE v. EMRY.

No. 29184.

Supreme Court of Missouri, Division No. 2.

June 4, 1929.

Appeal from Circuit Court, Gentry County; John M. Dawson, Judge.

Dorl F. Emry was convicted of grand larceny, and he appeals. Affirmed.

Clayton W. Allen, of Rockport, for appellant.

Stratton Shartel, Atty. Gen., and Don Purteet, Asst. Atty. Gen., for the State.

WHITE, J.

The appeal is from a judgment rendered upon conviction of grand larceny September 17, 1927, in the circuit court of Gentry county, assessing defendant's punishment at two years in the penitentiary.

Defendant was charged in one count with burglary and larceny in breaking into a corncrib belonging to G. W. Lainhart and C. F. Lainhart, and feloniously stealing and taking away therefrom 74 bushels of shelled corn of the value of $74.

He filed a timely motion for new trial in which he assigns errors. A supplemental motion for new trial setting up other alleged errors was filed September 29, 1927, 12 days after the verdict. It cannot be considered because filed out of time.

Appellant also attacks the information, which he claims he has a right to do for the first time in this court.

I. The principal point made by the appellant in his motion for new trial is that the evidence was insufficient to submit the issues to the jury.

The evidence shows without contradiction that Charlie Lainhart and William Lainhart operated a farm about a mile and a half east of Albany, in Gentry county; that a half mile from the house and off the public highway, near a road, they maintained a corncrib, in which they had stored shelled corn and corn in the ear. The shelled corn is described as yellow corn No. 3. The crib was kept locked. On the morning of July 23, 1927, it was discovered that the door of the crib had been opened by forcing out a staple by which the lock was fastened, and some of the shelled corn taken. The quantity was estimated to be 75 or 80 bushels.

On that day the defendant, Dorl F. Emry, and Laurel Sexton sold 74 bushels of No. 3 yellow corn to the Farmers' Mercantile Company, at St. Joseph, 65 miles west of the place where the Lainhart corn was taken. It was paid for by check for $74, payable to Dorl F. Emry, which check he cashed. This sale of the corn was admitted by the defendant.

The similarity of the corn in defendant's possession to that taken from the crib is not sufficient to make a submissible case. 36 C. J. 907, and notes. The case is made out wholly upon circumstantial evidence, and other circumstances must be considered.

The corn was hauled away loose in the bed of a truck and not in sacks. This is shown because the owners of the corn followed the trail some distance by the corn that was jostled out where the truck went over the rough places. The corn which the defendant sold was not in sacks but was loose in the bed of the truck.

July 22d, before the corn was taken that night, the defendant went to the home of Paul Hulet, who lived in the west part of Albany, and borrowed Hulet's truck bed, and put it on his own truck. It was not a dump bed. Several witnesses testified to seeing the defendant changing the truck beds at the Hulet place on that day.

George F. Dorsey, an employee of the Lainharts, testified for the state. He discovered the absence of the corn the next day and found the tracks of the truck in which the corn had been hauled away. They were peculiar in that the two hind tires were not alike; one made a different mark from the other. They found those tracks going directly east past Mr. Hulet's house, where the truck bed was changed. There was evidence that no other trucks were used on the farm of the Lainharts.

A warrant was issued for Emry and Sexton July 29th, 6 days after the theft was discovered. They were not to be found at that time in Gentry county. The sheriff attempted to trace them by telegram. He first got trace of the defendant in North Dakota, next in Salt Lake City, and finally located him in Denver, Colo., got a requisition, went to Denver, and brought him back August 31, 1927. When the sheriff took charge of him in Denver Emry said he did not want to do any talking at that time; that he wanted to talk with the folks when he got home. The sheriff said: "He asked me how the Lainharts were feeling about it, and I told him I didn't know very much about it. He said he would wait until he got home and he didn't want to have anything to say without there was a chance to `compromise.'" The Sexton boy also talked, but his statements were excluded.

The defendant took the stand, admitted that he sold 74 bushels of yellow corn to the Farmers' Mercantile Company, at South St. Joseph, July 23, 1927, but denied that he took it from the premises of the Lainharts. He said that Saturday morning, July 23d, he and Sexton left home between 5 and 6 o'clock in a Ford car to go to St. Joseph for repairs on his truck, and after he had passed Oak, he overtook a truck which was stalled in a ditch. The truck was loaded with shelled yellow corn, and belonged to a man whom he recognized as Jack McClure, living at Rochester. He saw that McClure was intoxicated and incapable of driving his truck, and he thought he would stop and help him out of the ditch. McClure then asked him to drive his truck to St. Joseph and sell the corn for him. He told McClure that he could not take him to St. Joseph in that condition; that it would get them in bad. McClure kept getting drunker all the time, so defendant and Sexton put McClure in the Ford car and left him there. They took McClure's loaded truck to St. Joseph and sold the corn for $74, and when Emry came back, McClure was sobered up, received the $74, and paid Emry $15 for selling the corn. Emry swore the bed of the truck was a dump bed.

The absurdity of...