State v. Grubb

Decision Date22 December 1906
Citation201 Mo. 585,99 S.W. 1083
PartiesSTATE v. GRUBB et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Emory Grubb and Riley Asher were convicted of grand larceny, and they appeal. Affirmed.

Frank H. Farris and Harry Clymer, for appellants. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

This is an appeal from the circuit court of Dent county, Mo. On September 11, 1905, the prosecuting attorney of that county filed an information, charging Emory Grubb, Riley Asher, and George Grubb with grand larceny in said county on the ____ day of June, 1904, in that they took, stole, and carried away 40 head of neat cattle, to wit, 10 head of red-colored steers about three years old, 10 head of red-colored steers about two years old, and 10 head of red-colored steers about five years old, of the value of $1,200, of the goods and chattels of the Sligo Furnace Company, a corporation organized under the laws of the state of Missouri. At the October term, 1905, the state dismissed the case as to George Grubb, and he was discharged, and at the same term the defendants Emory Grubb and Riley Asher were put upon their trial and convicted. After ineffectual motions for new trial and in arrest of judgment, they were sentenced to the penitentiary in accordance with the verdict of the jury. From that sentence they appeal.

The testimony on behalf of the state tended to establish that the Sligo Furnace Company was a corporation duly organized under the laws of the state of Missouri, and that it owned a pasture in Dent county, Mo., which contained 2,700 acres, situated near the town of Sligo in the northern part of Dent county. This pasture was surrounded by a barb-wire fence, and the company was in the habit of taking cattle each year to graze. In April and May, 1904, some 300 steers were placed in this pasture in charge of James Cooksey as manager and superintendent thereof. Cooksey visited the pasture about three times a week, salted the cattle, and looked after the fence. It was his duty to solicit stock for the company for grazing. In April and May, 1904, stock belonging to A. J. Glassey, J. W. Glassey, Ed Mitchell, Chas. Matlock, Nathan Whites, and George Bell was placed in this pasture. Some of these cattle were branded with an "O," some with "C," some with "Q," some with "G," and some with "U." They were two years old, three years old, four years old, and five years old, all red, and all dehorned. In October, when the cattle were rounded up to be taken out of the pasture, it was discovered by Cooksey and the owners of the cattle that 15 of Bell's cattle and 38 of Glassey's cattle were missing. Thirteen of Bell's cattle were large steers and two were small yearlings. The Glassey cattle were bigger and older; most of them being three and four years old. All of the missing cattle were gentle. Fifteen of these cattle were afterwards found northeast of the Sligo pasture in Crawford county, some of them a mile away, and others as far as ten miles from the pasture. The cattle were worth from $25 to $27.50 per head. One heifer was kept in the pasture with the steers. She was three or four years old, red with a white face, weight about 1,000 pounds. About the 20th of June, 1904, Cooksey discovered the tracks of two horses inside of the pasture near the north fence. These tracks were made by small horses, one smaller than the other. Near where these horse tracks were found, Cooksey discovered that the barb-wire fence had been cut, and the horses' tracks went out through this opening thus left in the fence. This cut was in the fence on the north side and near the northeast corner of the pasture, the corner next to Scott Parrott's place, which was five or six miles away. In May and June, Herman Essman was engaged in the livery business in Steelville, Crawford county, Mo. He testified that in May or June—he was not certain as to the date, but it was not later than June—the defendant Grubb and another man drove to Steelville in a buggy and sent the buggy back by the driver, and hired two horses from him (Essman). The defendant Grubb applied to witness Essman for two saddle horses, saying that he wanted them for three days, that he was going to Sligo, and Essman hired him two small bay horses, one of which was a mare with a white star in her face. Defendant Grubb paid for the horses in advance, and he and his companion left together on horseback, going in the direction of the town of Sligo, leaving Steelville at 9 o'clock a. m. About 1 o'clock a. m. of the third day thereafter, these horses were returned to Essman's barn, by a man whose name, he thought, was Asher. This man was not as large as the defendant Grubb, and wore a black mustache. The horses were tired when they were returned, and one of them had a sore back and sore withers.

J. W. Conway testified that he lived about 3 miles or 3½ miles from this Sligo pasture in June, 1904, and he knew the defendant Emory Grubb by sight. On the 6th day of June, 1904, a relative of his, Mrs. Arna, was buried, and, after the funeral, he was sitting on the porch of his residence, and his wife called his attention to some one coming up the lane with some cattle, and in a few minutes he saw the cattle coming with two men driving them. One of the men got ahead, and he did not see him good, but he saw the defendant. They stopped the cattle beside his lot, and the defendant stopped and looked at the witness, and then motioned his hand to his companion, and they drove the cattle on. This was just after sundown, and they were going down Dry creek, north in the direction of Scott Parrott's. He did not speak to these men, nor they to him. He identified the defendant Emory Grubb as one of the men, to the best of his knowledge and belief. He thought there were something like 40 or 50 head of cattle in the drove. They came from a southern direction, and were going north. They were traveling on the neighborhood road. He was about 25 steps from the defendant, and the defendant was on horseback. The other man was some 80 or 100 yards from him, and was a smaller man, according to his recollection.

Scott Parrott at that time lived about one mile north of Conway's place, and on the same county road, about six miles from the Sligo pasture. He had lived on this place with short intervals since 1869. His farm is about 20 miles from Leasburg. On the evening of the 6th of June, 1904, Parrott was at his home with his wife and children. About sundown that evening, a man calling himself J. D. Emory, a large, good-looking man, who carried himself up straight, and said he weighed 180 pounds, accompanied by a smaller man of a dark complexion with a heavy mustache, came to his house with a drove of cattle. He identified both the defendants Emory and Asher as the men who came to his house that evening with the cattle. They reached his place about sundown with the cattle, and requested permission of him to put these cattle in his lot, saying they would stay with the cattle, and he requested them to stay with them on account of the fence being poor, and he did not want them to get into his field and destroy his crops. They took supper with him, and borrowed some blankets and made a bed to sleep in in a small building close to the lot. He and they repaired the fence around the lot before they put the cattle into the lot, and, by the time they got the fence repaired, it was dark. The cattle were three and four year old steers, some of them...

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    • United States
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    ......Powell, 83 Mo. 365; Small v. Hatch, 151 Mo. 306; McCormick v. St. Louis, 166. Mo. 337; Bank of Oak Ridge v. Duncan, 40 S.W.2d 658;. State ex rel. v. Reynolds, 245 Mo. 702;. Wentzville Tobacco Co. v. Walker, 123 Mo. 670;. Third Natl. Bank v. Owen, 101 Mo. 558; Johnston. v. Pump ...Kallauner, 300. S.W. 554; State v. Tunnell, 296 S.W. 423; State. v. Roberts, 278 S.W. 971; State v. Clark, 9. S.W.2d 635; State v. Grubb and Asher, 201 Mo. 585;. People v. Weber, 149 Cal. 325. (5) The court erred. in admitting evidence that plaintiff had been in bad health. for ......
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    ......Powell, 83 Mo. 365; Small v. Hatch, 151 Mo. 306; McCormick v. St. Louis, 166 Mo. 337; Bank of Oak Ridge v. Duncan, 40 S.W. (2d) 658; State ex rel. v. Reynolds, 245 Mo. 702; Wentzville Tobacco Co. v. Walker, 123 Mo. 670; Third Natl. Bank v. Owen, 101 Mo. 558; Johnston v. Pump Co., 272 Mo. ...Kallauner, 300 S.W. 554; State v. Tunnell, 296 S.W. 423; State v. Roberts, 278 S.W. 971; State v. Clark, 9 S.W. (2d) 635; State v. Grubb and Asher, 201 Mo. 585; People v. Weber, 149 Cal. 325. (5) The court erred in admitting evidence that plaintiff had been in bad health for some time. ......
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