State v. Lease

• Decision Date: 21 February 1939
• Docket Number: 36180
• Citation: 124 S.W.2d 1084
• Parties: STATE v. LEASE
• Court: Missouri Supreme Court

124 S.W.2d 1084

STATE v. LEASE

No. 36180

Supreme Court of Missouri, Second Division

February 21, 1939

Roy McKittrick, Atty. Gen., and Tyre W. Burton, Asst. Atty. Gen for the State.

OPINION

WESTHUES, Commissioner.

Appellant was convicted in the circuit court of Dent county, Missouri on a charge of grand larceny and sentenced to two years' imprisonment in the penitentiary. From this judgment he has appealed. The case originated in Texas county and was transferred to Dent county on a change of venue.

In his motion for a new trial appellant complains that there was not sufficient evidence to sustain a conviction, or any evidence that the alleged offense was committed in Texas county. From the evidence we learn that the premises of both appellant and Harvey T. Kimrey, the prosecuting witness, were in Texas county, Missouri. This is sufficient to prove the venue. Kimrey owned a sow and nine pigs which disappeared about February 1, 1936. On February 11, 1936, defendant sold ten hogs which answered the general description and markings of the hogs owned by Kimrey. The hogs were sold to Arthur Wells, who had one Charley Smith get them from Lease's barn and haul them by truck to Houston, Missouri, where Wells had his place of business. We have held in numerous cases that possession of recent stolen property is not proof of guilt as a matter of law, but is sufficient to submit the question of guilt to a jury. In such a case the explanation of the defendant's possession of the stolen property is also for a jury. The weakness in the state's evidence in this case is in the identity of the hogs alleged to have been sold by the defendant as being the hogs belonging to the prosecuting witness. To illustrate this note the evidence of Kimrey, the prosecuting witness:

'Q. Now, you say you had ten hogs. Describe these hogs. A. Well, there was a red sow with black spots on her, a few black spots.

'Q. About how large was this sow? A. She was a large sow, would weigh around 300, I would judge.

'Q. You say she was red with a few black spots? A. Yes, and the shoats was practically red except one; some of the shoats had a few black spots like the sow, but there was one mostly white, had a few black spots on it.

'Q. What color did you say the other pigs were -- shoats? A. Practically red. They was all red, but a few of them, probably three or four, had some black spots on them.

'Q. And there was one, you said, was practically white? A. Yes, with a few black spots.'

On cross-examination he testified:

'Q. Do you know about where the black spots predominated, where there were the most of them and the largest? A. Well, I don't -- there was a few on her side and back.

'Q. Which side? A. Well, I couldn't say.

'Q. Well, did your sow have four large black spots on the right hind leg? A. I wouldn't know.

'Q. Did she have a spot almost on top of her hips that was larger than the spots alongside of her leg? A. Well, I wouldn't say about the spots.

'Q. Well, were you the only fellow in that neighborhood that had a red sow with black spots? A. Oh, I don't know about that.

'Q. Do you know of any others in that neighborhood? A. Well, I seen one that looked practically like my sow.

'Q. When did you see her? A. I seen her when I was hunting this one. She belonged to Mr. Thomas.

'Q. Yes. That is Chet Thomas? A. Yes, sir. She wasn't as large a sow but she was marked almost like my sow.

'Q. Is that the only red sow with black spots you know of? A. Well, there is others.'

This witness further testified that the shoats weighed about one hundred pounds and were marked with an overbit in the right ear; that the sow was marked with a smooth crop off of the left ear and an underbit in the right ear; that she was to have pigs in March. This witness also testified that he bought this hog in 1932, from a man named Storm. Storm described the hog he sold to Kimrey as follows:

'Q. Where did these black spots predominate? A. Well, on her back, the best I remember.

'Q. On top of her back? A. Well, kinda on her side and back like.

'Q. Which side? A. Well, I don't exactly remember that now, they was just little bitty black specks on her.

'Q. Just little bitty black specks on her? A. Yes, just small spots.

'Q. No large black spots on her at all? A. No, sir.' Storm had not seen this hog since 1932, when she weighed about one hundred and fifty pounds.

Charley Smith hauled a sow and nine shoats from the defendant's barn, located about two miles from the prosecuting witness' home, to Houston, Missouri. On his way he stopped at Success, Missouri, the trading point for that neighborhood. Here Smith loaded other freight on the truck. The defendant accompanied Smith on this trip. While the truck was at Success a man named Williams asked to ride as far as Cabool. Smith granted this request. Smith testified that he did not notice any marks on the hogs; that the large hog weighed about three hundred pounds and the shoats about one hundred pounds each. He further testified as follows:

'Q. And what color was this sow? A. I think she was a red and black the best I remember.

'Q. About how much would she weigh? A. About 300 pounds.

'Q. Did you notice the marks in her ear? A. No, sir.

'Q. What kind were the other nine? A. Well, they were shoats, I would imagine they would weigh somewhere near a hundred pound.

'Q. What color were they? A. Well, part of them was red and black, and there was one light looking.

'Q. One light, -- you mean a white looking one? A. Well, it wasn't as dark colored as the other ones.

'Q. Light colored? A. Light colored.'

* * * * * * *

'Q. Now, this sow that you mention was red with black spots? A. Well, she was red and black, I think, the way I remember it. That is, she had -- I wouldn't know whether you would call her red with black spots, but anyway that is the way I remember her color, was red and black.

'Q. There is a good many hogs of the same description out there, isn't there? A. Yes, sir.'

* * * * * * *

'Q. She wasn't heavy with pig, was she? A. Well, the sow, I don't know if she was or not, but anyhow she was fat, she was a sow that was pretty fat, and I don't think she was that would be my...