State v. Hadlock

• Decision Date: 20 December 1926
• Docket Number: No. 26938.,26938.
• Citation: 289 S.W. 945
• Parties: STATE v. HADLOCK.
• Court: Missouri Supreme Court

289 S.W. 945

STATE v. HADLOCK.

No. 26938.

Supreme Court of Missouri, Division No. 2.

December 20, 1926.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Elgin Hadlock was convicted of killing a calf, with intent to convert the carcass thereof to his own use, and he appeals. Affirmed.

William B. Skinner and Robert Stemmons, both of Mt. Vernon, for appellant.

North T. Gentry, Atty. Gen. (Walter E. Sloat, of Jefferson City, of counsel), for the State.

Statement.

BAILEY, C.

On September 14, 1925, the prosecuting attorney of Lawrence county, Mo., filed in the circuit court of said county, a verified information, which, omitting formal parts, reads as follows:

"Rex V. McPherson, prosecuting attorney within and for Lawrence county, Mo., acting herein under his oath of office and upon his knowledge, information, and belief, informs the court that Elgin Hadlock, late of said county of Lawrence and state of Missouri, on or about the 2d day of June, 1925, at and in the county of Lawrence and the state of Missouri, did then and there one white-faced bull calf, of the value of $25, the personal property of Chas. C. Johnson, then and there being unlawfully, willfully did kill, with intent then and thereby to feloniously steal and convert the carcass and hide of said white-faced bull calf to his own use, against the peace and dignity of the state."

On September 18, 1925, defendant filed a motion to suppress evidence, which was overruled. On the same day he was formally arraigned, entered a plea of not guilty, was tried before a jury, and on said date the following verdict was returned:

"We, the jury, find the defendant, Elgin Hadlock, guilty as charged in the information and assess his punishment at imprisonment in the penitentiary for a term of two years.

                             "Virgil W. Anderson, Foreman."
                

Thereafter a motion for a new trial was filed, overruled, allocution granted, judgment rendered, and sentence pronounced in conformity with said verdict. An appeal was granted defendant to this court.

Counsel for appellant have made a very brief and insufficient statement of the case. After reading the record, we find that counsel for respondent have made a full and fair presentation of the facts, which we adopt as follows:

"The prosecuting witness, Charles C. Johnson, lived in Ozark township, in Lawrence county, appellant, Elgin Hadlock, living about 4½ miles from the Johnson home. Johnson had a farm of 143 acres adjoining the Hadlock place, on which he had at the time 7 head of cattle, 2 cows, 2 yearlings, and 3 bull calves. There was a fence between the Johnson and Radio& farms.

"Wren Johnson, the son of Charles Johnson, went to the pasture on the 2d day of June and immediately after his arrival missed one of the bull calves. The missing calf was six months old, and the testimony shows that it weighed about 500 pounds on hoof. Young Johnson went home, notified his father, and they immediately returned to this field. The cow, whose calf was missing, led them over to the fence where they saw an animal had apparently been killed, there being blood on the ground. The Johnsons then followed a track which had been freshly made and where something had been dragged along the ground by a horse or horses, finding a place in the adjoining field where the head and hide of a calf were still burning. Near by they also found a stump where a carcass had apparently been cut up. The head of the calf had burned but very little and was identified as that of a white-faced calf. The Johnsons then examined the track of the horses which had, from all appearances, been used to drag away the carcass and found that one horse was shod in front, and the other horse had two shoes in front and one behind. They next went over on the hill where appellant, Hadlock, was working and asked him if he had seen any one around there. Hadlock said he had seen no one, and, examining the feet of Hadlock's horses, the shoes corresponded with the tracks found around the burning hide.

"Johnson immediately swore out a warrant charging Hadlock with killing the calf, and he returned with Sheriff Austin to the Hadlock home. After arresting the appellant, a search was made and in the house they found a piece of cooked beef which had been placed in an old lard can, and, in a small shed back of the house, they found the balance of a beef which, according to the testimony, would weigh about 500 pounds on hoof.

"This evidence as to the finding of the beef was testified to by Charles Johnson, Wren Johnson, and Sheriff Austin.

"Chester Wood, a 14 year old boy, who was working for the Johnsons, also testified that he knew the Johnson stock, and that the head of the calf which was burned was unquestionably that of one of Johnson's calves. The Johnsons both testified that the head of the burned animal was that of their calf.

"The appellant and his wife, Jennie Hadlock, testifying for the defense, swore that they had purchased a 175 pound calf from Clay Woody on March 29, 1925, and had butchered it on June 1, 1925, that the beef found in their house was the calf they bought, and that they knew nothing whatever about the killing of Johnson's calf. Hadlock also testified that his team was shod different than the state's testimony related.

"A check for $12 which was given in payment of the calf butchered by them was introduced in evidence. Appellant testified that the calf butchered by him was a dark-colored calf.

"The defense only offered two witnesses.

"The following testimony was introduced by defendant in support of his motion to suppress the state's evidence:

"Direct examination by Mr. Stemmons:

"William Austin: `I am the sheriff of Lawrence county and some time ago arrested the defendant, Elgin Hadlock. I did not have a search warrant, but, after the arrest, I searched his building and found some fresh beef in the smokehouse and some cooked beef in the house.'

"Cross-examination by Mr. McPherson:

"`I had the warrant for the arrest of Elgin Hadlock when I went to the premises, said warrant charging him with killing a calf, and I served it at the time I made the search.'"

Opinion.

I. The sufficiency of the information heretofore set out is challenged by appellant on that ground that the act complained of is not alleged to have been feloniously committed.

Section 3318, R. S. 1919, on which the information is based, reads as follows:

"If any person * * * shall willfully kill such animal, with intent to steal or convert to his own use the carcass or skin or any part of the animal so killed, he shall be adjudged guilty of larceny, and punished in the same manlier as if he had feloniously stolen such animal."

Section 3312, R. S. 1919, makes it grand larceny to feloniously steal a calf belonging to another. Section 3318, R. S. 1919, clearly delines the offense with which appellant is charged, and the information follows the language of the statute. He was clearly informed by the foregoing information that he was charged with unlawfully killing Johnson's white-faced bull calf, on June 2. 1925, in Lawrence county, Mo., of the value of $25, with intent "to feloniously steal and convert the carcass and hide of said white-faced bull calf to his own use, contrary to the peace and dignity of the state." We are of the opinion that the information is sufficient. State v. McWilliams, 267 Mo. 437, 184 S. W. 96; State v. Shields, 296 Mo. loc. cit. 389, 24d S. W. 932; State v. Anderson, 298 Mo. loc. cit. 391, 250 S. W. 68; State v. Gurnee, 309 Mo. loc. cit. 17, 274 S. W. 58; State v. Moore (Mo. Sup.) 279 S. W. 133; State v. Cardwell (Mo. Sup.) 279 S. W. loc. cit. 101; State v. Griffith (Mo. Sup.) 279 S. W. loc. cit. 138; State v. Wright (Mo. Sup.) 280 S. W. loc. cit. 705, 706; State v. Bauer (Mo. Sup.) 285 S. W. 82. 83; State v. Pigg (Mo. Sup.) 278 S. W. 1030.

In State v. Anderson. 298 Mo. loc. cit. 391, 250 S. W. 71, Judge White has very clearly and forcefully declared the law of this state, in respect to the matter under consideration, as follows:

"The courts of this state, however, have simplified criminal pleading, as far as it could be done without legislative authority under the Constitution and the prevalence of the common law. Where an offense is of statutory origin, described by the statute, an indictment or information in the language of the statute is sufficient where the statute sets out all the elements constituting the offense. State v. McWilliams, 267 Mo. loc. cit. 449 (184 S. W. 96): State v. Perrigin, 258 Mo. loc. cit. 236 (167 S. W. 573); State v. Moten, 276 Mo. loc. cit. 357 (207 S. W. 768)."

II. The trial court is charged with error, in failing to instruct the jury on circumstantial evidence, although no instruction was asked or submitted to the court on this subject. It was not necessary, in making out the state's case, to ask a cautionary instruction relating to circumstantial evidence. This was a collateral matter relating to appellant's side of the case.

We are cited by appellant, in support of above contention, to State v. Miller, 292 Mo. loc. cit. 135, 237 S. W. 498, and State v. Burrell, 298 Mo. 672, 252 S. W. 709. In the Miller Case, page 135 (237 S. W. 501), it is said:

"Appellant complains of the action of the trial court in refusing, at his request, to instruct the jury upon the law of circumstantial evidence." (Italics ours.)

In State v. Burrell, supra, the court failed to instruct as to manslaughter. The defendant did not submit an instruction on this subject, nor did he request the court to so instruct. Judges Walker, Ragland, and James T. Blair dissented, but the remainder of the court convicted the trial court of error in failing to so instruct. The undersigned dissented from the opinion in above case, on the ground that it made the trial court an insurer against error, permitted astute and able lawyers to lie in ambush for the court, take a chance on the trial of the cause, and, if unsuccessful, to trip...