State v. Lee

• Decision Date: 09 February 1916
• Docket Number: No. 18991.,18991.
• Citation: 272 Mo. 121,182 S.W. 972
• Parties: STATE v. LEE.
• Court: Missouri Supreme Court

182 S.W. 972

272 Mo. 121

STATE v. LEE.

No. 18991.

Supreme Court of Missouri.

February 9, 1916.

In Banc. Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Albert Lee was convicted of larceny, and he appeals. Reversed, and defendant discharged.

Under an indictment charging the defendant with stealing six hogs, the property of one Walter Reynolds, the defendant was tried in the circuit court of Butler county, found guilty, and his punishment assessed at two years in the penitentiary. Defendant has duly perfected an appeal to this court.

The evidence upon the part of the state tends to show that Walter Reynolds, the prosecuting witness, lived on a farm about three-fourths of a mile north of the farm upon which the defendant lived, near Neelyville, in Butler county, Mo. Reynolds owned a small black sow. The sow was marked with a crop and split in the left ear, and an aluminum button, bearing the name of "Walter Reynolds" on one side and "Neelyville, Missouri" on the other side, was fastened in the sow's right ear. This button was about the size of a quarter. The sow was turned out on the range which extended up to defendant's place, and would come up to prosecuting witness' home nearly every day. During the last week in September, 1913, she failed to come up as usual, and Mr. Reynolds did not see the sow again until October 14, 1913, on which date he found the sow in defendant's barn. At that time she had five small pigs, and was fastened up in a stall in the barn with some other hogs.

It appears that on October 13th one Bradford and a Mr. Molloy went to defendant's place in search of some missing hogs. They told defendant that they had heard he had some hogs of theirs. Thereupon defendant said, "Come on and I will show you," and he took them to the barn and showed them the hogs that were fastened in the stall, but they did not find the hogs they were looking for. They noticed a black sow with five pigs in the stall at that time. Defendant said the hogs in the barn belonged to him. Later that same day Bradford and one McClain went back to the farm, but it does not appear that defendant was then present. On the next day, October 14th, Bradford, Molloy, and prosecuting witness and his mother went to defendant's farm, but it does not appear that the defendant was present or that they had any conversation with him. When they reached the barn, Reynolds examined the black sow, and, upon raking the mud from her ear, found the aluminum button bearing his name. Some time later, on that day, the prosecuting witness instituted replevin suit to replevin the sow, and returned to defendant's place with the constable and Mr. McClain. It appears that McClain and the prosecuting witness went to the barn, and that the constable went out into the field, where he found defendant at work. There the constable served the replevin writ upon the defendant, and the defendant said that the hogs did not belong to Reynolds. The officer told defendant that Reynolds had identified the black sow by the aluminum button in her ear, and defendant said: "If that black sow has got Walter Reynolds' button on her ear, I will eat it." Defendant then accompanied the officer to the barn, and they scraped the mud off of the sow's ear and showed defendant the button. It does not appear what defendant did or said after that. None of the state's witnesses knew who put the sow in the barn or how long she had been there. They testified that the pigs appeared to be about one week old. Some of the witnesses said that the pen in which the hogs were fastened in the barn was boarded up about four feet, and that it was dark in there. Other witnesses described the pen as a stall with the opening boarded up about four feet. The prosecuting witness' mother testified that she accompanied the men to the barn when they found the sow and pigs in the barn with a lot of other hogs, one of Mr. Abington's, one of Mr. McClain's, and one that the witness did not know.

The defendant testified in his own behalf that on October 12th he owned a black sow which was running loose on the range, and that he was expecting her to have pigs. At that time he had two hired hands working for him, one a "hobo" called Shorty, and the other was Howard Rowe, whose home was somewhere in Arkansas. The defendant, before starting on a trip to Poplar Bluff, told these two hired hands that if the black sow came up that day to put her in the barn, because he was expecting her to have pigs. When he returned from Poplar Bluff the next day, the hired hands told him that they had put the black sow in the barn, and that during the night she had delivered pigs. When Bradford and Molloy came to his house on the 13th of October and inquired for hogs, he took them to the barn and opened the door and showed them the hogs in the barn. The defendant at that time saw the black sow and the pigs, and supposed they were his, but said that it was a little dark in there, and that he did not pay much attention to the hogs at that time, and that he did not know that the black sow was not his until the replevin writ was served on him the next day, at which time he went to the barn with the officer, and was shown the button in the sow's ear. He testified that his sow and the prosecuting witness' sow were about the same size, and that his sow had a crop in the left ear, and that nobody could have told that the sow he had in the barn belonged to the prosecuting witness until the mud was scraped off her ear, which was the first time that he had information that the sow did not belong to him. Defendant's sow finally came up two or three weeks afterwards without any pigs. He presumed that something had destroyed them. He testified that he did not know where "Shorty" went after he quit working for him, and that Rowe lived somewhere in Arkansas.

(It appears that defendant was not indicted until April 24, 1914, some 6 months after the occurrence of the alleged offense, and that the trial did not occur till April, 1915, 18 months after the date of the alleged offense.)

Defendant's wife corroborated him in regard to the two hired hands putting the hog in the barn while the defendant was away in Poplar Bluff. Defendant's son Willie also corroborated the defendant, and testified further that he had just come home from school and saw Shorty and the other hired hand driving the black sow around to the barn door, and that she did not have pigs at that time. The son also heard "Shorty" tell defendant, at breakfast the next morning, that they had put the black sow up.

In rebuttal, the prosecuting witness testified that he never saw "Shorty" or Rowe about the place. Witnesses Molloy and Bradford testified that they had been around defendant's place about four times in October, but that at none of those times had they seen "Shorty" or Rowe working there. Upon cross-examination they admitted that "Shorty" and...