State v. Maggard

• Decision Date: 20 May 1913
• Parties: THE STATE v. MACK MAGGARD, Appellant
• Court: Missouri Supreme Court

157 S.W. 354

250 Mo. 335

THE STATE v. MACK MAGGARD, Appellant

Supreme Court of Missouri, Second Division

May 20, 1913

Appeal from Douglas Circuit Court. -- Hon. John T. Moore, Judge.

Affirmed.

Dooley & Hiett and Patterson & Mason for appellant.

John T Barker, Attorney-General and Thomas J. Higgs, Assistant Attorney-General, for the State.

(1) There was ample evidence to warrant the verdict returned by the jury. The contention that the verdict was against the evidence is without any merit and does not deserve the consideration of this court. (2) That the verdict of the jury is against the law as declared in the instructions given by the court is a contention that could not be seriously argued in this case and was only raised by appellant as a matter of form. (3) The court instructed the jury on all the necessary points of law in the case as required by statute and in acordance with the many decisions of this court. State v Conway, 241 Mo. 285. (4) The court did not err in admitting irrelevant, illegal and incompetent testimony on the part of the State.

FARIS J. Brown, P. J., and Walker, J., concur.

OPINION

FARIS, J.

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 co-defendants, 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 Johnathan 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 22nd 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 eighteen 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 sometime 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 co-defendant here, and who resided somewhere in Greene county. On the farm of Will Maggard, the proof tends to show, 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 any 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.

I. 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 (Sec. 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 insufficiency of the evidence to support the verdict; (b) the misdirection and non-direction of the court in the instructions; and (c) the admission on the part of the State of incompetent testimony and the refusal to admit, on defendant's part, competent testimony. These in their order.

II. The weight of the testimony was for the jury. The record shows that there was substantial evidence adduced by the State on every point required by law to be proven to make out the guilt of defendant. If the jury believed the witnesses for the State, as it was their province to do, the conviction was proper and is amply supported by the record. If they had believed the witnesses for the defendant, including the defendant himself, they might well have found him not guilty. From the concrete result, it is evident that the triers of fact elected to believe the State witnesses. This was their legal privilege and we are not disposed, under the facts before us, to interfere with their finding. There was a sharp conflict developed by the evidence on many of the crucial points in the case. If the defendant's version is correct, he is an innocent and persecuted human, a sufferer from vicarious punishment rightly the meed of another. But viewing the whole case from afar with a level eye, we cannot say that the jury did not reach a conclusion consonant with the weight and credibility of the evidence. But as we have seen, and not to burden our views with reiteration of citations, which would only lengthen without illuminating this opinion, we end as we began, by saying that the law is settled, which precludes our interference on the grounds urged with the verdict of a jury in a case at law, present substantial proof of every legally required element of a given case. We rule this point adversely to defendant's contentions and hold that the testimony was sufficient to sustain the conviction.

III. The instructions which the court gave and each of them is challenged, and it is urged that the court did not instruct on all of the law of the case. The court, by the instructions, correctly defined grand larceny, both abstractly and specifically, as having application to the concrete facts in the case; it correctly instructed on reasonable doubt and the presumption of innocence; on the good character of defendant and the weight of his testimony on the presumptions...