State v. Keller, s. 56607

• Decision Date: 11 October 1971
• Docket Number: No. 1,Nos. 56607,56700,s. 56607,1
• Citation: 471 S.W.2d 196
• Parties: STATE of Missouri, Respondent, v. Gary KELLER, Appellant
• Court: Missouri Supreme Court

Page 196

471 S.W.2d 196

STATE of Missouri, Respondent, v. Gary KELLER, Appellant.

Nos. 56607, 56700.

Supreme Court of Missouri, Division No. 1.

Oct. 11, 1971.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Robert G. Duncan, Lewis E. Pierce, Pierce, Duncan, Hill & Russell, Kansas City, for appellant.

HOUSER, Commissioner.

Gary Keller, convicted by a jury of stealing hogs and sentenced to 5 years' imprisonment, has appealed, claiming that the evidence was not sufficient to support a verdict of guilty.

Accepting as true all evidence of record, whether direct or circumstantial, tending to incriminate him, drawing all inferences favorable to the State that can reasonably be drawn therefrom and disregarding all contrary evidence and inference, State v. Chase, Mo.Sup. en Banc, 444 S.W.2d 398, 401, we find the evidence insufficient to convict this appellant of the crime with which he is charged.

The State's evidence tended to prove these facts: John and Lola Browning were awakened at their farm home in Henry County at 2 a.m. by a stock truck 'going by.' The truck and a passenger automobile coming from the other direction stopped opposite each other, down the road. The two vehicles then proceeded to the adjoining farm, owned by Fred Eye, where Mr. Eye kept 115 hogs. The barn and buildings on the Eye property, located about 3/4 mile west of the Brownings' farmhouse, were visible to the Brownings, who observed the lights of the truck back up to a loading chute and by watching its lights observed the automobile drive in the property, turn around and stop headed back toward the road. Flashinglights were observed. The Brownings called Mr. Eye and a deputy sheriff, both of whom proceeded toward the Eye feed lot in separate vehicles. As the deputy and Mr. Eye approached the feed lot they observed the automobile (a black 1967 Ford) drive out of the feed lot and head east (toward the Browning farm). In the meantime, Mr. Browning had proceeded west in his pickup truck to a point a quarter of a mile from his home, where he stopped his truck and blocked the road. As the deputy approached the Ford from the rear he turned his light on, the doors flew open and two men jumped out. One was short, about 5 feet 6 inches in height. The other was about 6 inches taller. They had on dark clothes. The shorter man wore dark jeans and a checkered shirt. The deputy did not know either of the men. The deputy alighted, cried 'halt,' drew his revolver, and fired over their heads. The shorter man turned and looked the deputy 'square in the face.' The deputy later learned that the name of the shorter man was Carl Edward Jackson, who is 5 feet 6 inches tall. The deputy did not see the face of the taller man. The two men ran through the field toward the south and made their getaway. The taller man stumbled and fell in the field soon after he fled from the automobile. The driver of the Ford, a man named Cole, was captured at the scene. Returning to the feed lot the deputy examined the truck, which was backed up to the chute. Inside were three hogs. Other hogs were in the loading chute and gated in the barn. It had been raining earlier that night and the ground was muddy. The deputy saw three sets of tracks of human beings at the hog lot * * * 'average shoe tracks, no distinctive tread on any of the soles,' about a 9-size shoe. The deputy called the Sheriff, and the roads and fields were searched for the two escapees, following the men's tracks. One set of tracks was made 'by a bigger man than the other, a bigger stride.' Both sets of tracks 'appeared to be about the same size.' The tracks went south a quarter of a mile, then southwest, then west a half mile, then southwest again across the highway south of a roadside park. The park is 2--2 1/2 miles distant from the place where they left the automobile. The officers reached the park about 9:30 that morning, and called off the search about 10:30 a.m., when they could no longer follow the tracks. The officers drove around the area that day, looking in plowed fields for tracks, etc. The next day the deputy received a telephone call about two men walking on Highway 52. Thirty hours after the getaway and at 4:20 p.m. he saw two men on Highway 52 about 3 miles west of the park. They were walking, trying to 'thumb a ride.' The deputy recognized one of them as the man whose face he saw early that morning (later identified as Jackson). Jackson was wearing dark trousers and a checkered shirt. He was wet and muddy. The other man (this appellant) was dressed in jeans and wore a dark shirt. He was also wet; his clothes were soiled with mud; they had alfalfa hay or some kind of hay on them 'where it looked like he slept in a barn'; there was hair on his clothes and there was an odor of the hog lot-the smell of hog manure. The men were arrested and brought to the county jail.

We disregard the testimony that defendant was not involved in an attempt to steal hogs at the time and place mentioned; that defendant and Carl Jackson were playing cards a mile or two north of Harrisonville and that defendant was not in Henry County at that time; that defendant's clothes were muddy because he accidentally drove a girl friend's automobile in a ditch, and that he and Jackson were on...