State v. Hicklin

• Court: Missouri Supreme Court
• Writing for the Court: Douglas, P.J.
• Citation: State v. Hicklin, 218 S.W.2d 564, 358 Mo. 1016 (Mo. 1949)
• Decision Date: 14 March 1949
• Docket Number: 40979
• Parties: State of Missouri, Respondent, v. Buford Hicklin, Appellant

218 S.W.2d 564

358 Mo. 1016

State of Missouri, Respondent, v. Buford Hicklin, Appellant

No. 40979

Supreme Court of Missouri

March 14, 1949

Appeal from Lafayette Circuit Court; Hon. Phil H. Cook Judge.

Affirmed.

Frank F. Catron for appellant.

(1) The evidence was insufficient to sustain a conviction on anything more than mere probability, inference and suspicion. And mere suspicion of guilt is not enough to justify submission of a case to a jury (also (14) this Brief). City of St. Louis v. Diechman, 135 S.W.2d 6. (2) The corpus deliciti of the crime charged was never laid by the State's evidence, State v. Caporetti, 292 S.W. 42. (3) Extra-judicial confessions of guilt while under arrest and adducing circumstances which may tend to convict or to enable prosecution in securing conviction, are not admissible without proof of the corpus delicti. State v. Young, 237 Mo. 170; State v. Campbell, 257 S.W. 131; State v. Morro, 281 S.W. 720; State v Willoby, 34 S.W.2d 7. (4) The State cannot contradict the testimony of a prosecuting witness, except by the testimony of another State's witness whose testimony is equally emphatic and cogent. State v. Tatman, 151 Mo.App. 426. (5) Scintillas of evidence are not enough to take a case to a jury. State v. Gregory, 96 S.W.2d 47. (6) The trial court erred in overruling defendant's motion for a new trial and in permitting the judgment to stand, for the reason that the conviction had is not a bar to further prosecution. The general rule of law as to pleas in bar to former jeopardy is that they must be to an identical offense, identical as to parties, and as to evidence. State v. Toombs, 34 S.W.2d 61; State v Williams, 152 Mo. 115; State v. Schyhart, 199 S.W. 205; State v. Murphy, 141 Mo. 267. (7) The trial court erred in permitting the judgment to stand for the reason that the information lacked the certainty and sufficiency to enable defendant to know the nature and cause of the charge against him and as a result defendant does not know of what particular crime or charge he stands convicted. State v. Stowe, 132 Mo. 199; State v. Kruger, 134 Mo. 262; State v. Barbee, 136 Mo. 440; State v. Murphy, 141 Mo. 267; State v. Hyde, 234 Mo. 200; State v. Timeus, 232 Mo. 177; State v. Stringer, 211 S.W.2d 925. (8) The failure of the information to inform the accused of what offense he is charged may be inquired into upon appeal even where it has not been questioned by motion or otherwise in the trial court. State v. Stowe, 132 Mo. 199; State v. Gooch, 285 S.W. 474. (9) The failure of proof left nothing upon which to predicate instruction, State v. Plant, 209 Mo. 307, and the trial court erred in giving State's Instruction I, so broad in its scope that it warranted the Jury in bringing in a verdict on either one of the two charges pending against the defendant, which instruction, in substance, informed the jury that time was not the essence of the offense, which is not the law when there are similar charges pending which can only be identified by time. 31 C.J. sec. 3454, p. 843; 42 C.J.S., sec. 3267, p. 1279; State v. Wilson, 39 Mo.App. 184; Town of Kirkwood v. Autenreith, 21 Mo.App. 75; Steel v. Steel, 171 S.W. 10. (10) The trial court erred in overruling defendant's motion for a new trial, for reason of lack of identity of offenses and variance amounting to failure of proof, State v. Shapiro, 216 Mo. 359; State v. Plant, 209 Mo. 307; State v. Ballard, 103 Mo. 634. (11) The burden of proof is always on the prosecution to establish the identity of the property with the stolen property. Schultz v. People, 219 Ill. 196; Bishop v. People, 194 Ill. 365; State v. Chore, 228 N.W. 413. (12) The trial court erred in overruling defendant's motion for a new trial for the assigned cause that the conviction was upon mere probability, inference and suspicion. And the identity of the property with the property received must be shown to authorize conviction. State v. Matticker, 22 S.W.2d 647; State v. Murphy, 25 S.W.2d l.c. 82. (13) Defendant in motion for new trial assigned as error that the verdict of the jury was against the weight of the evidence. Where the evidence is so lacking in weight that it amounts to a failure of proof, the appellate court should take cognizance and consider the evidence. State v. Matticker, 22 S.W.2d 647; State v. Murphy, 25 S.W.2d l.c. 82; State v. Perkins, 18 S.W.2d l.c. 8. (14) Mere suspicion, however, strong, will not supply the place of evidence, where life and liberty is at stake. State v. Jones, 106 Mo. 302; State v. Schrons, 152 S.W.2d 17; State v. Carpenter, 154 S.W.2d 81. (15) The conviction had herein on the testimony of single witness completely impeached at the trial and subsequently rewarded for his testimony, should not be permitted to stand. (16) The mistakes and confusion of the State created confusion and prejudice in the minds of the Jury and a conviction based on Suspicion, Conjecture, Surmise, should not be permitted to stand. State v. Caviness, 33 S.W.2d 940 (7); State v. Field, 170 S.W. 1132; State v. Schrum, 152 S.W.2d 17; State v. Carpenter, 154 S.W.2d 81.

J.E. Taylor, Attorney General, and C.B. Burns, Jr., Assistant Attorney General, for respondent.

(1) The evidence was sufficient and appellant was not convicted on a mere probability, inference or suspicion. State v. Woodall, 300 S.W. 712; State v. Sanders, 4 S.W.2d 813. (2) The corpus delicti of the receipt of stolen property was proved by the state's evidence and the admissions by defendant were properly received in evidence as the corpus delicti was proved. (3) The verdict in this case would be a bar to another prosecution for the same crime. State v. Cohen, 100 S.W.2d 544. (4) The information is sufficient. State v. Jenkins, 213 S.W. 796; State v. Swearengin, 234 Mo. 549, 137 S.W. 880; State v. DeWitt, 152 Mo. 76, 53 S.W. 429; State v. Derrington, 137 S.W.2d 468. (5) Appellant's Point (9) in his brief presents nothing for review by this court. State v. Wood, 199 S.W.2d 396. (6) The identity of the stolen property was established by the state. (7) There was substantial evidence to support the verdict. State v. Cohen, 100 S.W.2d 544. (8) The conviction was not the result of confusion and prejudice in the minds of the jury. State v. Cohen, 100 S.W.2d 544.

OPINION

Douglas, P.J.

Buford Hicklin was found guilty of receiving a stolen hog, and was sentenced to two years imprisonment. He appeals.

The facts show that George E., Sambo, Lee had some hogs in his hog pen at his home in Higginsville. Among them were two young hogs. The hogs were from the same litter, were sandy red in color, and were distinctively marked. One was a male, the other a female. On April 9, 1947 he missed one of the hogs from the pen, and prior to April 28 he missed the other. He searched for them around Higginsville but did not locate them. Then he went to Lexington still searching and found his two hogs in a hog pen owned by accused and where accused kept his own hogs. Besides operating a restaurant, accused dealt in hogs. Lee went after a deputy sheriff and returned to the accused's pen with him. Accused pointed out Sambo's two hogs to the deputy sheriff and told him he had bought the hogs from one Coley Britt. Sambo Lee filed two separate complaints against the accused, one for each hog, in the magistrate's court charging him with receiving stolen property.

Later on an information was filed charging accused with receiving one hog as stolen property on April 28. Reference is made to the fact a second information was also filed on the second complaint charging accused with the receipt on April 9 of the other stolen hog. However the record before use does not show this. Accused was tried under the information charging him with receiving a stolen hog on April 28.

At the trial Sambo Lee testified about finding his two missing hogs in accused's pen. He described the hog missing prior to April 28 as a male hog, weighing between 80 and 90 pounds. One Coley Britt testified he had taken a hog from Lee's hog pen on the night of April 27, drove to Lexington, and routed accused out of bed at his sleeping quarters below his restaurant sometime after midnight, and in the early morning of April 28. He sold the hog to accused, put it in accused's pen, and collected $ 13 for it. In his dealing with accused he told accused, "That's old Sambo's pig," and accused "kind of laughed." The witness testified he did not know whether the hog was a male or female, and that he figured it weighed from 75 to 80 pounds. The deputy sheriff testified that accused pointed out the two hogs in his hog pen as belonging to Sambo Lee and acquiesced in Sambo's taking them. Accused admitted to the officer he bought the two hogs from Britt at about a two-weeks interval. Accused also admitted to the officer that Britt sold him the second hog after midnight and on April 28, and told him it was Sambo's hog and that he paid $ 13 for this hog which weighed from about 70 to 90 pounds.

Accused testified in his own behalf. He told of Coley Britt getting him out of bed after midnight and on April 28 to sell him a hog. He bought the hog for $ 13 but it was a female weighing from 65 to 70 pounds instead of a male weighing 80 to 90 pounds. He denied Britt told him it was Sambo's hog.

Accused contends here on appeal that the corpus delicti of the crime charged, that is knowingly receiving a stolen hog, was not proved because the testmony was conflicting about the identification of the hog he received on April 28, the date charged in the information. From the record before us the only substantial conflict on the issue over the identification of the stolen hog is in the testimony of the prosecuting witness and of the accused. Merely because testimony is conflicting its probative force...