State v. Keller

• Decision Date: 21 April 1937
• Docket Number: No. 35163.,35163.
• Citation: 104 S.W.2d 247
• Parties: STATE v. KELLER.
• Court: Missouri Supreme Court

104 S.W.2d 247

STATE v. KELLER.

No. 35163.

Supreme Court of Missouri, Division No. 2.

April 21, 1937.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Harry Keller was convicted of grand larceny, and he appeals.

Affirmed.

O. J. Page, of Springfield, and J. E. Haymes and J. P. Smith, both of Marshfield, for appellant.

Roy McKittrick, Atty. Gen., Wm. Orr Sawyers, Asst. Atty. Gen., and Aubrey R. Hammett, Jr., of Jefferson City, for respondent.

LEEDY, Presiding Judge.

By information, filed in the circuit court of Webster county, appellant, Harry Keller, was charged jointly with Pete Keller and Louie Retheford with the crime of grand larceny. A severance having been ordered, appellant was found guilty upon his separate trial before a jury, and his punishment fixed at a term of two years in the penitentiary. After an unavailing motion for new trial, he appealed but has filed no brief. His motion for new trial contains only three assignments, the first of which complains that the verdict was against the evidence; the second alleges error in the admission of certain testimony; and the third relates to alleged improper conduct on the part of the jury.

For the purpose of determining the questions sufficiently raised by the motion for new trial, a statement of the facts in brief outline will suffice. The evidence warrants the finding that on November 22, 1934, two white, male hogs, weighing approximately 275 pounds each, were stolen from J. W. Walker at his farm near Fordland, in Webster county. The woven wire around the hog pen had been cut and the hogs dragged down a hill to the road, and loaded in an automobile. White hog hair and fresh blood were found near the hog pen and in the road where the hogs had been loaded. It had been raining and the road was muddy to a certain extent. There were footprints of two men found at the scene of the larceny. Rubbers and overshoes of appellant and his codefendant, Retheford, were fitted into the tracks. By following the imprints made by the tires on the automobile, it was followed to the home of appellant. The trail led to the home of appellant, and to his 1929 Ford coupe, which was parked in front of his home. It appeared that the tracks were largely on the side of the road, thus making the route of the car easy to trace. In the turtle back of appellant's car was found a quantity of slab wood, on some of which there was fresh blood and white hog hair, and that part of the car had recently been wiped or washed out with rough material, such as a sack. The car was traced a short distance to the home of Orbit Keller, where Pete Keller lived. The evidence showed that the car had been stopped at an old chicken house on the Orbit Keller place, which had been converted into a barn. Outside of this building the officers found a dog eating on a hog paunch. The dog would not permit the deputy sheriff to go inside the barn. Orbit Keller then held the dog and permitted the deputy to enter. Inside the barn was found a stack of oat straw, and five or six dogs. One dog pawed at something under the oats. The deputy sheriff pulled an old, bloody sack from under the stack of oat straw, which was found to contain hog entrails and a hog paunch. An examination of the latter disclosed ground wheat, on which Walker testified he had been feeding his hogs. Orbit Keller disclaimed ownership or knowledge of the hog entrails and paunches. The dogs belonged to Pete and Orbit testified Pete had fed them that morning. The defense was an alibi, appellant claiming that on the night on which the hogs were alleged to have been stolen, he was out fox hunting with Pete Keller and Louie Retheford, but had passed by the Walker place in his car. In rebuttal, the state called a number of witnesses to refute the evidence of appellant and his witnesses on the issue of alibi.

I. The first assignment reads as follows: "Because the verdict of the jury is against the evidence in the case, in this, that the evidence on the part of the State does not show that the defendant is guilty of the crime with which he is charged." It is a familiar rule that an assignment that a verdict is against the evidence avails nothing in this court. It was so held even before the enactment of the present statute governing motions for new trial. Section 3735, R.S.1929, section 3735, p. 3275, Mo. St.Ann. In State v. Scott, 214 Mo. 257, 113 S.W. 1069, 1071, in an opinion by Burgess, J., it was said: "It is no ground for setting aside the verdict of the jury that it may be...