State v. Kennon

• Decision Date: 20 December 1938
• Docket Number: 36212
• Citation: 123 S.W.2d 46
• Parties: STATE v. KENNON
• Court: Missouri Supreme Court

123 S.W.2d 46

STATE v. KENNON

No. 36212

Supreme Court of Missouri, Second Division

December 20, 1938

W. A Brookshire, of Farmington, for appellant.

Roy McKittrick, Atty. Gen., and W. J. Burke, Asst. Atty. Gen for the State.

OPINION

TIPTON, Judge.

The appellant was convicted of grand larceny in the circuit court of St. Francois County and his punishment assessed by the jury at imprisonment in the penitentiary for a term of two years.

The appellant has not favored us with a brief; we will therefore, proceed to examine the points raised in his motion for a new trial.

Four of his assignments of error are too general and cannot be reviewed because they do not comply with Section 3735, R.S.Mo.1929, Mo.St.Ann. § 3735, p. 3275, in that they do not set forth in detail and with particularity the specific alleged errors. They are as follows: (1) 'The verdict is against the weight of the evidence.' (2) 'The verdict is against the law and the evidence.' (5) 'The Court erred in admitting prejudicial, incompetent, and irrelevant testimony offered by the State.' (6) 'Upon the entire record it is clearly shown that the verdict should have been for the defendant.' See State v. Dollarhide, 337 Mo. 962, 87 S.W.2d 156; and State v. Copeland, 335 Mo. 140, 71 S.W.2d 746.

Assignments of error numbers 3 and 4 in the motion for a new trial challenge the sufficiency of the evidence to sustain the jury's verdict. Number 3 states that the evidence is not sufficient to justify the court in giving Instruction No. 1 which defines grand larceny and directs a verdict in event the jury finds certain testimony to be true, and number 4 challenges the correctness of the court in overruling the demurrers to the evidence.

The facts as found in the record are as follows: The prosecuting witness, George Hager, lived about one-fourth mile from the appellant. Both parties operated farms upon which they raised many hogs. It was the custom that each of them would purchase young hogs at community sales and auctions and feed them for the purpose of resale. On August 8, 1937, the prosecuting witness left his home about 8 o'clock A. M. to attend a family reunion and did not return home until about 6 o'clock P. M. During that interval no member of his family remained or was present at his farm. He had about two hundred hogs running in a wheat field about one-half mile from his house and after returning home that day he fed the hogs some corn, at which time he noticed the absence of a young sandy hog which was a 'pet.' For several days he missed the 'pet' but did not make a check of the remainder of the hogs. He testified that he thought probably the 'pet' had gone through a fence and that it was elsewhere on the farm. A few days later, after a rain, he went in to other fields but did not find any foot tracks or the 'pet.' Then, checking his hogs, he found that there were twelve missing. On August 24th, 1937, the deputy sheriff of St. Francois County notified Hager that he had found some of his hogs. Accompanying the deputy sheriff, he went to the home of Albert Miner in Bonne Terre and found two of them. He positively identified these hogs as two that he had recently purchased at a community sale and returned them to his farm. Miner testified that on August 8th, 1937, about 1:30 o'clock P. M., he purchased these hogs from the appellant, paying $ 10 for them. In this he was corroborated by several witnesses. He testified that at the time he purchased them the appllant had two others with them in a truck at Bonne Terre. The appellant admitted that he sold the hogs to Miner but said he had purchased them the day before at a sale held at Potosi. The deputy sheriff testified that he had several conversations with the appellant. At first the appellant told him he had purchased the hogs in Potosi and that when the time came he could produce receipts showing that he had purchased them there. After he had been informed that Hager had identified these hogs, he stated, 'Don't you suppose his hogs could get mixed in with mine?' The sheriff testified that shortly after the appellant was arrested, he offered to...