State v. Harris

• Decision Date: 07 May 1935
• Citation: 82 S.W.2d 877,336 Mo. 1134
• Parties: The State v. Charles P. Harris, Appellant
• Court: Missouri Supreme Court

82 S.W.2d 877

336 Mo. 1134

The State v. Charles P. Harris, Appellant

Supreme Court of Missouri

May 7, 1935

Appeal from Morgan Circuit Court; Hon. Walter S. Stillwell Judge.

Reversed and remanded.

E. E Hairgrove, G. A. Stultz and William C. Irwin for appellant.

There being no evidence of the guilt of appellant at the close of respondent's evidence, or at the close of all the evidence in the case, the court should have, at the request of appellant, instructed the jury to find him not guilty. State v. Young, 237 Mo. 170; State v Crabtree, 170 Mo. 642; State v. DeWitt, 191 Mo. 51; State v. Jones, 106 Mo. 302; State v. Scott, 177 Mo. 665; State v. Johnson, 209 Mo. 346. The respondent having dismissed counts two and three of the information, the court should not have given the form instruction, instructing the jury that they might find appellant guilty as charged in the information, of grand larceny as charged in the information. State v. Harmon, 106 Mo. 635; State v. Hedgepeth, 311 Mo. 452; State v. Pace, 269 Mo. 681; State v. Hudson, 137 Mo. 618; State v. Preslar, 316 Mo. 144; State v. Boone, 70 Mo. 649. The court should have confined the jury in Instruction 6, to the issue as to the ownership of the property mentioned in the first count of the information. State v. Preslar, 316 Mo. 144.

Roy McKittrick, Attorney General, and Franklin E. Reagan, Assistant Attorney General, for respondents; G. Logan Marr of counsel.

(1) The court committed no error in giving Instruction 6. Mo. Digest, Crim. Law, 806 (3), 822 (1); State v. Citius, 56 S.W.2d 76. (2) The demurrers offered by appellant were properly overruled. State v. Starling, 207 S.W. 767; State v. Koch, 10 S.W.2d 928; State v. Carroll, 214 Mo. 392; State v. Liston, 2 S.W.2d 780; State v. Flowers, 278 S.W. 1043; State v. McCleave, 256 S.W. 814.

OPINION

Leedy, J.

At the April, 1931, term of the Morgan Circuit Court, appellant was convicted of grand larceny, and his punishment was fixed at a term of two years in the penitentiary, and he appeals.

The information was in three counts, the first of which charged the larceny of two horses, one a bay mare about nine years old, and the other a brown horse about twelve years old, the goods and chattels of one Louis Paulus. The date of the alleged offense was charged to have been "on or about day of , 1930." Counts two and three, charging, respectively, larceny of farming implements and domestic fowls, were dismissed by the State at the close of all the evidence, and the case was submitted, and conviction had under the first count.

The sufficiency of the evidence is challenged. Stated in the light most favorable to the State, its evidence was to the following effect: Louis Paulus, the alleged owner of the horses, was an elderly German. He had lived near Stover, in Morgan County, some eight or ten years, where he owned an eighty-acre farm; he came there from Nebraska, was a bachelor, and lived alone on the farm. Several physicians testified that he was suffering from senile dementia at and for a long time prior to the date of the alleged offense, as well as at the time of the trial. Numerous lay witnesses testified to a great variety of peculiarities and eccentricities of the old gentleman, and that he was not of sound mind. It was shown that in the latter part of June, 1930, he removed from Morgan County, and returned to Nebraska to live. On the day of his departure he was in company with appellant, Harris, and there was some evidence that appellant accompanied Paulus when the latter left. Harris seems to have returned immediately. On the day just mentioned, appellant went to a bank at Stover, and sought to cash, or obtain the proceeds of a certificate of deposit for about one thousand dollars owned by Paulus, but the bank declined to pay in the absence of Paulus. Later in the day, appellant returned to the bank accompanied by Paulus, and an attorney. As a result of negotiations had at that time, the bank's draft for nine hundred and seventy-nine dollars (which represented the value of the certificate of deposit, less twenty-five or fifty dollars paid in cash, and less, also, the amount of a note owed by Paulus to the bank) was delivered either to Paulus or appellant. In due time the draft cleared. It was introduced in evidence, bearing the indorsement of Paulus, the payee, and what purported to be the indorsement of appellant, although the banker said he could not identify appellant's signature.

The record is in a state of confusion as to what disposition, if any, was made of the farm and the livestock and other personal property thereon at the time Paulus returned to Nebraska. From his own testimony it appeared that Paulus was still the owner of the farm at the time of the trial. If he leased or rented it, it is not shown to whom, or under what arrangement. On the other hand, there is testimony tending to show he had disposed of the place, but this is not at all clear. He disposed of a farm at the time he returned to Nebraska, but from the scant reference thereto in the testimony, it seems that it was a Nebraska farm that was sold. In any event, shortly after Paulus left, appellant was seen on, and apparently in charge of the Paulus place. Henry Tambke, a neighboring farmer, in response to a question as to what appellant was doing there, testified "He was taking care of the stock for one thing -- watering the horses, and then some cleaning up there." This witness referred to appellant's having "taken" the premises in the early spring of 1930, and that thereafter appellant told the witness he was trying to sell the place; that Paulus wanted him to do so. H. F. Lemke testified he went to the Paulus farm on Sunday after Paulus left; that "Charles Harris (appellant) and I went over to look at them (the horses). He wanted to sell them to me. He priced them -- first he priced the horses, and then said what he would take for the mare -- he said he wanted the horses." He further testified to a conversation with Harris in which appellant "said he went over to see those horses, and he found them pretty near starved and he had to pump water about two hours." He quoted appellant as saying at that time, "I ain't afraid of that crazy man." He said Harris told him that he (Harris) was the owner of the horses.

Anton Ehlers testified that on November 20, 1930, he bought the mare from Harris paying twenty-five dollars for it and that he "thought" the mare came from Mr. Paulus. On cross-examination he testified, "I asked if there was anything against the horse, and he (Harris) said he had a bill of sale for it." Dave Gehrs testified for the State that about the first of November, 1930, he purchased the tools and implements on the Paulus place from appellant, and rented the house on said farm from appellant. He moved thereto the last of October or first of November, 1930, and resided there until the following March; that while he was so renting the Paulus farm there were two horses there -- a bay mare nine or ten years old, and a brown horse about twelve years old, and that appellant claimed ownership of them; that the horses left the place while witness resided thereon, and that "Mr. Harris got them." That he got one of them in November, 1930, and the other three or four weeks later; that appellant claimed he got "the property" as a commission on the sale of the farm.

Louis Paulus was called as a witness on the part of the State. Defendant interposed an objection to his testifying on the ground he was incompetent because under the State's own evidence he was shown to be insane. The court in the absence of the jury, conducted a preliminary examination of the witness touching his competency, and from the answers elicited thereby, permitted him to testify. To such action and ruling of the court no exception was saved, nor was the objection renewed. While his examination on the merits was somewhat rambling, in substance, he testified he put the farm in grass "and turned them (the horses) out because I was tied up in Nebraska." When asked by the prosecuting attorney, "Have you still got two horses on your farm in Morgan County?" the witness replied, "I turned them horses out, but I don't know whether they lived, or not -- I was going to look and see if they were there yet." The only other question asked the witness relating to the horses, or the claim of ownership made by Harris to them was as follows: "Did you give Charles P. Harris a bill of sale to these two horses? A. No, sir, I never did." He denied that he knew Harris, or that he had ever seen him. It was developed that a fund had been raised for the purpose of employing a special prosecutor in the case, to which fund several of the State's witnesses admitted they had subscribed. The complaint was not made by Paulus, but by the sheriff of the county.

Appellant did not testify, but on his behalf there was introduced a bill of sale dated June 27, 1930, purporting to have been signed by Paulus conveying to one Ora B. Jones, the livestock and other personal property on the Paulus farm, as well as growing crops thereon. Mr. A. J. Bolinger a licensed attorney residing at Versailles, who also maintained an office at Stover, was called on behalf of appellant. He testified that at the instance of Paulus he went to the Farmers' Bank at Stover in company with Paulus, and that during the course of the negotiations with respect to the certificate of deposit hereinabove referred to, Mr. Vickery, the banker, and Paulus had a conversation, the substance and effect of which was as follows: "Q. Did Mr. Vickery, in your presence talk with Mr. Paulus concerning his farm? A. Yes, he asked where he was going. Q. What did he say? A. He said, he was going back to Nebraska. Q. What else, if...