State v. English
| Decision Date | 05 June 1925 |
| Docket Number | No. 25699.,25699. |
| Citation | 274 S.W. 470 |
| Parties | STATE v. ENGLISH. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Shelby County; Hon. V. L. Drain, Judge.
Louis R. English was convicted of grand larceny under the habitual criminal statute, and he appeals. Affirmed.
E. W. Nelson and Lewis O'Connor, both of Hannibal, for appellant.
Robert W. Otto, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.
The defendant was indicted by a grand Jury in the circuit court of Marion county for grand larceny, under what is termed the habitual criminal statute (section 3702, R. S. 1919). The indictment charged that in October, 1922, in the county of Marion, he feloniously, in the nighttime, stole 34 chickens of the value of $50, the property of Mary Glendenning; that previously he had been convicted in the circuit court of Marion county, in the year 1920, of larceny from a dwelling house, sentenced to serve and did serve, two years in the penitentiary on said charge.
A change of venue was allowed and the cause sent to Shelby county, where, June 12, 1923, on a jury trial, a verdict was rendered, finding defendant guilty, and assessing his punishment at three years in the penitentiary. A judgment was entered in accordance with the verdict, and the defendant appealed.
I. The appellant assigns error to the action of the trial court in overruling his demurrer to the evidence. Therefore it becomes necessary to state the evidence at some length.
October 11, 1922, Mary Glendenning and her husband lived on a farm in Marion county. At that time she owned 162 pure bred white Plymouth Rock chickens which she kept in a yard near her dwelling house. They were marked by celluloid leg bands, some of which bands were red, and some lavender in color.
About 7 o'clock in the evening of that day Mr. and Mrs. Glendenning left home to attend a tent meeting in, the neighborhood. At that time the chickens were all there. The Glendennings returned home about 10 o'clock, and during the night heard no disturbance. They arose about 5 o'clock the next morning. Mrs. Glendenning remained home all that clay, and in the afternoon when she fed her chickens she counted them and found 35 were gone. They were pure bred chickens, and the 35 missing were worth $2 each. Leg bands were exhibited by the prosecuting attorney, and witness identified them as the same kind as those which she had upon her stolen chickens. These leg bands so exhibited had been taken from chickens bought in La Grange by one T. M. Decker the next day after hers disappeared. The chickens were never recovered.
The Glendennings lived in Round Grove township about 1½ miles west of Hester. Elbert Carter, a witness for the state, lived about 1½ miles east of Hester, from 2½ to 3 miles east of the Glendennings' house. The main road, called the Quincy-Newark road, passed through Hester. It is not clear whether this road passed Glendennings' house or Carter's house. Two main traveled roads went from Hester to La Grange; one through Maywood, and the other through Taylor. It was 4 miles from Hester to Maywood, and 10 miles from Hester to La Grange, making 14 miles from Hester to La Grange that way. It was likewise 14 miles from Hester to La Grange by way of Taylor. It was claimed by the state that the Glendenning chickens were sold in La Grange early the next morning, October 12, 1922. It appears from the evidence that to go from the Glendenning home or the Carter home, on opposite sides of Hester, it was necessary to go through Hester.
T. M. Decker was engaged in the poultry business at La Grange, and knew the defendant. On the morning of October 6th, about 6 o'clock, when he got up, he found on his front porch two coops filled with white Plymouth Rock chickens which had been brought and unloaded there before daylight. When he opened his place of business at 6 o'clock, a man, who gave his name as Johnson, was there and sold him the chickens. Decker paid for them with a check for $32.04. Two of the chickens were dead. At the time the defendant was near by. Decker took several celluloid leg bands off the chickens, turned them over to the prosecuting attorney of Marion county, and afterwards they were identified by Mrs. Glendenning as the same kind as those she had on her chickens. The coops in which the chickens were found in front of Decker's store bore the name of a poultry dealer in Quincy. They did not belong to Decker, and were never claimed by any one.
On the same morning, after buying the chickens, Decker made a trip to Liberty Church. About 4 miles out of town he saw the defendant and the man who had sold him the chickens, in a one-seated Ford runabout. They had stopped and the defendant was getting out.
Elbert Carter, who lived about 2 ½ or 3 miles from the Glendenning place on the other side of Hester, at about 9 or 10 o'clock at night, October 11th, saw the defendant and a stranger in a Ford runabout about a half mile from his place towards Hester. They had run into the creek and the stranger had gone to Carter's house for the purpose of getting some one to pull the Ford out of the creek. Carter took his team and pulled it out. The defendant was present and paid him for that service. The place where the Ford was pulled from the creek was about 100 yards from what is called the "High Bridge" over the Fabia river. Carter returned home with his team. The Ford engine was running when he left the two men. It took him about 15 minutes to get to his home, which was a half mile away, and the Ford did not overtake him, nor apparently come that way; the inference being that it probably went back to Hester, which would be on the road to La Grange.
One Adam Lentz, as he was going home between 9 and 10 o'clock, on the night of October 11th, crossed the High Bridge and saw a Ford runabout, with its engine running, sitting near the bridge. Two men were in the Ford car, but he did not recognize either of them. He saw a man get into the car, and saw a white chicken walking under a barbed wire fence near. The inference is that the loose chicken probably escaped from the car as chickens roost at night and do not run about the highway.
One Hugh Laytham testified that he was conducting a hotel at La Grange, and knew the defendant. The defendant and the stranger came to his hotel and took rooms the morning of October 11th. They left that morning, and Laytham saw the defendant the following morning, October 12th, at his hotel about 6 o'clock. He was going through the hallway to his room. Defendant and the stranger came down stairs and paid the room rent and the two walked out together. Shortly afterward the stranger drove up in front of the hotel in a Ford roadster which had no license. A deputy marshal was called and defendant told him the car was his, that he had just bought it, and showed what purported to be a bill of sale. He said that he was going to Durham to apply for a license. The marshal told him he had better make application there or he might be arrested before he got to Durham. The defendant then walked up the street to where the stranger was, the two came back, got in the car, and started south. The deputy marshal was acquainted with the defendant, and testified to the facts about the license. He said he afterwards learned the name of the stranger was Clucky. He testified that the defendant went to a garage and got a blank application for a license. Then he and the stranger got into the car and left town.
The state offered evidence of a former conviction of defendant, introducing the files, the judgment, the record showing the appeal, the affirmance of the case in the Supreme Court, and records of the penitentiary in relation to the defendant's incarceration, service, and discharge.
The defendant testified on his own behalf as follows:
These were all the questions asked the defendant by his counsel. The state inquired of him about his former conviction and about a conviction for another offense. Defendant offered evidence to show he was registered at a hotel in Quincy, Ill., October 11, and 12, 1923.
In rebuttal the state proved by several witnesses that defendant had a bad reputation for truth. The disappearance of the chickens the night of October 11th, the sale of chickens like them early the next morning, the similar leg bands, the undoubted participation of the defendant in the sale of the chickens and his association with the stranger, the movements of the stranger and the defendant in the night in the neighborhood on the road between the residence of the Glendennings and La Grange, the appearance of the stranger and the defendant the next morning in the Ford at La Grange, the' peculiar movements of the defendant and the stranger, their failure after the sale to claim the coops in which they had sold the chickens, with an utter lack of explanation by the defendant, all raise something more than suspicion that the defendant was guilty. It is not shown that other chickens of the same kind were sold or raised in the neighborhood, or that bands of like character were used by other chicken raisers near.
While the failure of a defendant to testify when he is on trial cannot be considered by the court, in this case defendant testified and therefore laid himself open to contradiction by impeachment the same as any other witness.
While he could not be cross-examined about any matters not referred to in chief, his denial was general and explained nothing. It would have been proper for the attorney for the state to comment upon his failure to explain the circumstances which told against him in the evidence. State v. Prunty, 276 Mo. 376, 208 S. W. 91, and cases cited. We are at liberty here, in drawing inferences from the evidence, to consider...
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