State v. Fraley

• Decision Date: 03 May 1938
• Docket Number: No. 35840.,35840.
• Citation: 116 S.W.2d 17
• Parties: THE STATE v. BERNIS FRALEY, Appellant.
• Court: Missouri Supreme Court

116 S.W.2d 17

THE STATE v. BERNIS FRALEY, Appellant.

No. 35840.

Supreme Court of Missouri.

Division Two, May 3, 1938.

Appeal from Macon Circuit Court. — Hon. E.L. Alford, Judge.

REVERSED.

Don C. Carter for appellant.

(1) "The court erred in refusing defendant's requested Instruction 4. This was the converse of State's Instruction 2, and should have been given." State v. Buckner, 80 S.W. (2d) 169. (2) "The court erred in failing to instruct the jury on all the law of the case, as provided by Section 3681, Revised Statutes 1929, and the decisions of the Supreme Court, in that the jury was not instructed as to the law of conspiracy." Sec. 3681, R.S. 1929; State v. Paxton, 126 Mo. 515.

Roy McKittrick, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

The court did not err in refusing appellant's requested Instruction 4. State v. Hill, 44 S.W. (2d) 105; State v. Messino, 30 S.W. (2d) 750; State v. Nasello, 30 S.W. (2d) 132.

WESTHUES, C.

Appellant was charged with stealing eight head of cattle in Shelby County, Missouri. A change of venue was granted and the case was tried in Macon County, resulting in a verdict of guilty and a punishment of two years' imprisonment in the penitentiary. An appeal was duly taken.

Appellant and Denver Hirrlinger, Carl Taylor and Clay Reed were jointly charged with the theft. A severance was granted and appellant, Bernis Fraley, was tried in this case. The evidence on the part of the State justifies the finding that appellant and Hirlinger, on the evening of March 13, 1934, loaded eight head of cattle, belonging to one Lee Greenly, into a truck and transported them to the National Stock Yards at Kansas City, where they were sold. The State introduced evidence, by witnesses Cook and Glahn, who owned trucks, that Hirrlinger and appellant attempted to employ them to take a load of cattle to Kansas City. These witnesses were positive in their testimony that this occurred on March 13. Two negro boys testified that Hirrlinger and appellant employed them to help drive the cattle, on the Greenly place, into a barn and later help load these cattle into a truck. Howard Burch testified that he owned a Ford truck and that Hirrlinger and appellant employed him to transport a load of cattle to Kansas City, Missouri; that he did so and was accompanied to the stockyards by appellant, who paid him $20 for the trip. Appellant's grandfather was the owner of the cattle. He testified, as a witness, that he had a habit of looking at his cattle about every two weeks. The cattle were located some distance from his home on a tract of land containing about six hundred and forty acres. He also testified that on March 14, he and his grandson, the appellant, went to see the cattle, and, although he did not count them, he was satisfied they were all there; that on April 7, eight head were missing. The description of the cattle that were missing corresponded with the description of the cattle that appellant was alleged to have taken to Kansas City, as testified to by other witnesses. According to all the evidence of the State the offense was committed on March 13. The State's theory was, that Mr. Greenly either failed to notice that the cattle were missing on March 14, or was mistaken as to the date. Other facts will be stated in the course of the opinion.

Appellant filed an application for a continuance, alleging that Denver Hirrlinger had been duly subpoenaed as a witness but was absent because of illness. A certificate of a doctor was offered in evidence in support of the application. It was alleged, that this witness would testify to facts which appellant could not prove by any other witness; particularly, that this witness would deny the evidence of Howard Burch and the two colored boys concerning appellant's connection with the theft; that this witness would deny he was with appellant at any time, as testified to by the witnesses; also, that Hirrlinger would deny that he and appellant had attempted to employ Cook and Glahn to haul the cattle. The trial court denied the application for a continuance. This ruling was preserved for our review. A close question is presented upon the record. The trial court heard evidence upon the application. We need not decide the point because the case must be remanded, and the same situation will not likely be present at another trial. The same is true as to the overruling of appellant's application for disqualifying the sheriff, and appellant's objection to portions of the prosecuting attorney's closing argument.

The trial court gave an instruction, usually given in larceny cases, the substance of which was, that if the jury should believe and find from the evidence that the defendant, at any time during the month of March, 1934, stole eight head of cattle belonging to Greenly, then they should find the defendant guilty and assess a punishment as prescribed by the law. The instruction concluded as follows:

"... and unless you so find and believe from the evidence you should acquit the defendant."

Appellant offered a converse instruction which read as follows:

"`The Court instructs the jury that if you find and believe from all the evidence in this case that the defendant, Bernis Fraley, in the County of Shelby, in the State of Missouri, on the 13th day of March, 1934, did not feloniously and wrongfully, steal, take and carry away from the farm of Lee Greenly, in Shelby County, Missouri, eight (8) head of cattle, the property of the said Lee Greenly, then you must acquit the defendant.'"

This instruction was refused, and appellant assigned this ruling as error. The State attempts to justify the ruling of the trial court on the following theory:

"Inasmuch as the court in the principal instruction closed the instruction with these words `and unless you so find you should acquit the defendant,' it was unnecessary to give the converse instruction. In view of the foregoing authorities it was not error to refuse appellant's Instruction No. 4."

The State cited three cases in support of its contention. We will note these. In the case of State v. Hill, 329 Mo. 223, 44 S.W. (2d) 103, the judgment of conviction was set aside and the cause remanded for a new trial. With reference to the point in question this court said:

"Instruction 1, after requiring a finding of those facts, concludes with these words: `And unless you so find you should acquit the defendant.' The converse of a positive instruction for the state should usually be given, when asked by a defendant charged with a crime. But instruction 1 covers the ground covered by the converse instructions Q and R which the court refused. We are not prepared to say that the failure to give those instructions on that account was error which would reverse the judgment, though they or instructions of like import could properly have been given."

It will be noted that the court did not directly pass upon the question now before us. In State v. Nasello, 325 Mo. 442, 30 S.W. (2d) 132, l.c. 141 (35, 36), the defendant did not offer a converse instruction and this court held that it was not the duty of the trial court to give such an instruction of its own motion. In the case of State v. Messino, 325 Mo. 743, 30 S.W. (2d) 750, l.c. 762 (23, 24), this court held that the instruction offered by the defendant was erroneous, and also that the trial court gave a converse instruction in addition to the concluding part of the main instruction, which was, that unless the jury found the facts as therein hypothecated they should acquit the defendant. A research of other cases, however, discloses that this court, in State v. Sloan, 309 Mo. 498, 274 S.W. 734, l.c. 738 (6), ruled as follows:

"Error is assigned because the trial court refused to give four instructions asked by the defendant.

"We think said instructions are correct statements of law. The first three were converse instructions to the main instruction given by the court, and they should have been given unless covered in such main instruction. [State v. Majors (Mo.), 237 S.W. l.c. 488; State v. Hayes (Mo.), 247 S.W. l.c. 168; State v. Shields, 296 Mo. 404, 246 S.W. 932; State v. Carr (Mo.), 256 S.W. l.c. 1047.] However, the main instruction concluded with the words, `and unless you so find the facts to be, you will acquit the defendant.' These words sufficiently submitted the converse of the main instruction, and the refusal of such converse instructions was not reversible error. [State v. Dougherty, 287 Mo. 82, l.c. 90, 228 S.W. 786.]"

In State v. Dougherty, 287 Mo. 82, 228 S.W. 786, l.c. 788 (7), no converse instruction was offered. This court held that the concluding portion of the main instruction, reading: "... unless you so find you will acquit," was sufficient. We have no fault to find with such a ruling in a case where a defendant did not offer a correct converse instruction. From the reading of these cases it will be noted that this court has consistently ruled that if a defendant offers a correct instruction, the converse of the State's main instruction, it...