State v. Maggard

• Decision Date: 20 May 1913
• Citation: 157 S.W. 354
• Parties: STATE v. MAGGARD.
• Court: Missouri Supreme Court

157 S.W. 354

STATE v. MAGGARD.

Supreme Court of Missouri, Division No. 2.

May 20, 1913.

1. CRIMINAL LAW (§ 1130) — APPEAL — FAILURE TO FILE BRIEFS.

Where the defendant in a criminal case presents no brief or oral argument in the Supreme Court, the court must look to the motions for new trial and in arrest of judgment to determine the errors relied upon by the defendant, under section 5312 of Rev. St. 1909, requiring the court to review all criminal cases appealed whether a brief is presented or not.

2. LARCENY (§ 55) — EVIDENCE — SUFFICIENCY.

Evidence in a prosecution for horse stealing held sufficient to show substantial proof of every element required by law to sustain a conviction.

3. CRIMINAL LAW (§ 1159) — APPEAL — VERDICT — CONCLUSIVENESS.

Where there is substantial proof of every essential element of a crime, the Supreme Court cannot interfere with the verdict of the jury.

4. LARCENY (§ 64) — EVIDENCE — POSSESSION OF STOLEN PROPERTY.

In a prosecution for larceny, where the evidence is all circumstantial, the possession of stolen property recently after the larceny is a circumstance creating a presumption, to rebut which the defendant must account for the possession of the property to the satisfaction of the jury.

5. CRIMINAL LAW (§ 784) — INSTRUCTIONS — CIRCUMSTANTIAL EVIDENCE — SUFFICIENCY.

An instruction that, to sustain a conviction upon circumstantial evidence alone, the facts must form a complete chain and point directly to the defendant's guilt, and must exclude every other reasonable theory, is not erroneous, since it substantially instructs that the facts must be all consistent with each other, and with the guilt of defendant, and inconsistent with every other reasonable hypothesis.

6. CRIMINAL LAW (§ 1172) — APPEAL — HARMLESS ERROR — INSTRUCTIONS — ERROR FAVORABLE TO DEFENDANT.

Even though the word "exclude" in such an instruction is more forcible than the expression "inconsistent with," the instruction is more favorable than the defendant has a right to ask, and he cannot complain.

7. CRIMINAL LAW (§ 1169) — APPEAL — ERROR INVITED BY DEFENDANT.

Where a witness for the prosecution testified on cross-examination, without objection, as to threats made to him by a brother of defendant who was jointly charged with the crime, the defendant cannot complain of error in permitting him to be questioned about the same threats on redirect examination.

8. CRIMINAL LAW (§ 1169) — APPEAL — ADMISSION OF EVIDENCE — ERROR FAVORABLE TO DEFENDANT.

Where such testimony on cross-examination did not indicate whether the threat was made by the defendant or his brother, and on redirect examination was shown to have been made by the brother, the error was favorable to defendant and not prejudicial.

9. WITNESSES (§ 395) — IMPEACHMENT — INCONSISTENT STATEMENTS — REBUTTAL — STATEMENTS CONSISTENT WITH TESTIMONY.

Where a witness in a criminal case is impeached by proving statements inconsistent with his testimony, it is competent for the party calling the witness to show that he has made statements in conformity with his testimony.

10. WITNESSES (§ 361) — IMPEACHMENT — REBUTTAL — GENERAL REPUTATION FOR VERACITY.

Where the defense has sought to impeach a witness for the prosecution by every means, except by evidence of general reputation, the prosecution in rebuttal may introduce evidence as to his general reputation.

Appeal from Circuit Court, Douglas County; John T. Moore, Judge.

Mack Maggard was convicted of grand larceny, and he appeals. Affirmed.

Defendant was indicted in the circuit court of Douglas county for grand larceny; being convicted, and his punishment being assessed at imprisonment in the penitentiary for a term of four years, after the usual procedure in such cases provided, he has taken and now prosecutes this appeal.

The larceny specifically charged was horse stealing. Defendant was jointly charged in this behalf with four others, but upon the defendant's application therefor a severance was granted to him and he was separately tried on September 26, 1912. The horses alleged to have been stolen were the property of one Orey Bennett, who resided about four miles from the town of Vanzant, in Douglas county. Some three weeks prior to the alleged theft, defendant, with one of his codefendants, Abe Emery, came into the neighborhood, in which said Bennett resided for the purpose of purchasing cattle, and while so engaged remained in that neighborhood about a week, boarding with one Jonathan Emery, the brother of Abe. The cattle which defendant and Emery purchased were kept in the lots of said Bennett. The defendant, it appears, must have become well acquainted with one of the stolen horses, namely, a certain mare, called in the testimony a "solid sorrel mare," for there is proof that he offered to trade a gray horse which he was then driving for said sorrel mare of Bennett's.

Defendant Maggard and Emery left this neighborhood with their cattle about the 22d of June, 1910, and on the night of July 13, 1910, the two mares of Bennett, which are alleged in the indictment to have been stolen, disappeared. Search was made extensively for these mares, and some two months later one of them, called in the testimony "the sorrel mare with the white face," was found in Ozark county; and some 18 months thereafter — to be exact, in February, 1912 — the "solid sorrel mare" was found in the pasture of Dave Coram, in Linn county, in this state. The testimony shows that Coram purchased this mare from defendant some time about the last of September, 1910; that about the 25th of August preceding defendant had come to the farm of one A. H. Stone, a neighbor of Coram, and whom defendant had known years before, and began work for Stone as a farm hand. Defendant, during the summer of 1910, made his home with his brother, Will Maggard, who is his codefendant here, and who resided somewhere in Greene county. On the farm of Will Maggard the proof tends to show that in the early days of August, 1910, at a secluded place, near some empty buildings, and in a small hollow among the bushes, there were found plain indications of horses having been kept.

The theory of defendant, as is clearly disclosed by the testimony of defendant, who, as a witness, testified for himself, was that defendant purchased the mare which he afterwards sold to said Coram from one Ed Compton, who resided about three miles east of Springfield, and was apparently a neighbor of Will Maggard, the brother of defendant. The other of the two mares in question, namely, the "white-faced sorrel mare," was for a time in the possession of said Compton, but the latter explains his possession of her by saying that he purchased her from Will Maggard, and that, upon ascertaining or suspecting that she had been stolen, he turned her back to said Will Maggard. Later this mare was found by one William Lee, a neighbor of Bennett, in the northwest corner of Ozark county, to which place inferentially (for the record is silent) she seems to have wandered. We say inferentially, because while the proof shows that this mare was for a month or two in Compton's possession, by reason, he says, of his purchase of her from Will Maggard, he says that he turned her back to Maggard. There is no showing as to the manner in which said Maggard disposed of her.

Defendant, in attempting to account for his possession of the stolen mare, swears, as we have stated, that he met the witness Compton on the public road and gave the latter $90 for her; that he rode her to the farm of Abe Emery, there purchased a buggy and set of harness from said Emery, and on the next morning started to drive to North Missouri. In his drive north he passed through various towns, but does not appear to have tarried long at either of them. He says that he did not even suspect that the mare had been stolen until he returned to Springfield, which occurred about November, 1910, though he admits that he and Emery were in Bennett's neighborhood in the June preceding, and that he saw the mares at that time, though he was unable to remember whether he offered to trade for one of them or not. Upon reaching Springfield he seems to have been advised that some trouble was brewing about the mares, for he says that he saw the witness Compton and asked Compton about the matter, but was advised by Compton that the trouble was not over the mare which defendant says Compton sold him, but was about the other of Bennett's mares. As to this conversation he is corroborated by one John Ikes, who seems to have no permanent residence at any place, but is apparently a man of peripatetic proclivities, who had, just prior to his presence with defendant in hearing of the conversation with Compton, come to Springfield from Chicago.

There was much impeachment of the witness Compton by certain witnesses offered for defendant; by laying this horse stealing at his door; and by the fact that Compton had been convicted of petit larceny, which was explained by him as consisting in the theft of a watermelon. There was testimony as to the good reputation of defendant; also testimony in rebuttal by the state of bad reputation, so as to leave the matter of reputation hanging somewhat in doubt. Other facts, if they shall become pertinent to a full understanding of the points of contention, will be further amplified in our views thereon.

Dooley & Hiett, of Houston, and Paterson & Mason, for appellant. John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen., for the State.

FARIS, J. (after stating the facts as above).

1. We have not been favored with either a brief or an oral argument on the part of defendant. We are compelled, therefore, in performing the duty enjoined on us by the statute (section 5312, R. S. 1909), to have recourse to the motion for a new trial and the motion in arrest in order to determine whether error meet for reversal occurred upon the trial.

Defendant alleges in his motion for a new trial: (a) The...