State v. McCleave
| Decision Date | 03 December 1923 |
| Docket Number | No. 24212.,24212. |
| Citation | 256 S.W. 814 |
| Parties | STATE v. McCLEAVE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.
Hewitt McCleave was convicted of grand larceny, and he appeals. Affirmed.
Barney E. Reilly, of St. Joseph, for appellant.
Jesse W. Barrett, Atty. Gen., and Robert W. Otto, Asst. Atty. Gen., for the State.
Appellant (defendant below) was convicted of the crime of grand larceny in the circuit court of Atchison county, after a change of venue from Nodaway county. He was sentenced upon the verdict of the jury to serve a term of two years in the penitentiary, and has appealed.
Since the main contention here is that the trial court erred in refusing to give defendant's requested instruction in the nature of a demurrer to the evidence at the close of the state's case, it will be necessary to consider the sufficiency of the facts shown in evidence. Defendant did not testify, and offered no testimony in his own behalf. It is his contention here that the record below contains no substantial evidence of guilt, and, in any event, that the proof goes no further than to establish certain facts which amount only to suspicious circumstances.
It appears that one George Ulmer lived in Hopkins, Nodaway county, and owned and operated a farm near that city, upon which he had a number of hogs and other live stock. In December, 1921, Ulmer's tenant had vacated the farm, and no one was there during the nighttime. Ulmer and his nephew went out to the farm during the daytime, and fed and cared for the live stock.
On or about December 14th four sows were missing from said farm. These and other hogs had been counted and marked with rings in their ears a day or two previously. The details are unimportant. Four sows answering the description of Ulmer's hogs were found in the possession of one Gordon Downing. That his possession was innocent and in due course by purchase from one Roland Pruitt is clearly shown. The identity of the hogs found in Downing's possession with those stolen from Ulmer's farm is not questioned here, and the facts tending to prove such identity need not be set out at length, although they are interesting. It is sufficient to say the hogs were permitted to identify themselves. They were taken to Ulmer's farm, and by their own conduct proved their familiarity with the surroundings there, and hence their own identity on the principle that "The ox knoweth his owner, and the ass his master's crib." Isaiah 1:3. The writer recalls a similar case tried before him on the circuit, where in much the same way stolen chickens were identified, one of which, a sitting hen, immediately resumed her rudely interrupted maternal duties as soon as she was turned loose at the home place.
Apparently defendant concedes that the state proved everything essential to a case of grand larceny, except the very important fact that defendant committed or participated in the commission of such larceny. It will therefore be necessary to set out at some length the proof which the state claims implicates the defendant.
As above indicated, Downing purchased the stolen hogs from one Roland Pruitt. At the time the hogs were stolen Roland Pruitt lived with his cousin Dana Pruitt, and worked for and farmed with him. One Wright Wray was working for Dana Pruitt when the hogs were stolen. Wright Wray and Roland Pruitt went to town in a Ford car late in the afternoon preceding the larceny. Wray testified that as they were returning they met the defendant Hewitt McCleave. He was riding a horse; the car was stopped and Pruitt got out, and he and the defendant stepped aside, and had a conversation, and afterwards defendant turned his horse loose, and got into the car, and the three rode to the home of one Cornelius McCleave, a brother of defendant; that defendant and Roland Pruitt decided to remain there all night, and shuck corn the next day. Pruitt then took Wray back in the automobile to the home of Dana Pruitt: that later in the night, and apparently while Wray was in bed, Roland Pruitt came into his room, and he then heard and recognized defendant talking in a room downstairs; that Wray discovered the four hogs at Dana Pruitt's place the next morning. Dana Pruitt testified that defendant came back to his place with Roland Pruitt about 9 o'clock that night.
No witness testified to the taking of the hogs by defendant. The state relies on possession of the hogs by defendant and Roland Pruitt almost immediately after they were stolen. Such possession is shown by a statement made by the defendant to the sheriff after he was arrested. He then told the sheriff that he and Roland Pruitt bought the hogs in the nighttime and the same night they were stolen from a man who had them in a truck, which had broken down on the road at a point about two miles south of Hop This was in the vicinity of Ulmer's farm.
After the hogs were stolen, and before defendant was arrested, but while he evidently knew he was suspected of the crime, he approached George Ulmer, the prosecuting witness, and proposed to give him a bankable note for $300, signed by himself and Roland Pruitt, or would give him a certain house Ulmer had previously tried to buy, if Ulmer would "drop the hog deal." In other words, there was testimony tending to show that defendant was trying to buy off the prosecution. Ulmer testified lid had previously told defendant that he was satisfied he was implicated in the stealing or knew something about it, and if he would "just come through" and tell all about it he would see that the "deal" was dropped.
I. We have concluded that there was substantial evidence tending to show that defendant and Roland Pruitt were in possession of the hogs very recently after they were stolen, in fact during the same night. Such possession was sufficiently shown to put upon defendant the burden of showing to the satisfaction of the jury that such possession was innocent. True, such possession was only shown by defendant's statement, but the jury was not obliged to believe defendant's story of how he and Roland Pruitt came into such possession, merely because such story was part of a conversation of the defendant proven by the state. The rule in substance is that the jury is authorized to accept as true statements against the interest of a defendant, if they find such statements were made by him, unless negatived by other evidence in the case, but are not obliged to believe self-serving statements shown to have been made by him, merely because shown in a conversation or admission proven by the state. But the jury may believe or disbelieve such statements, as the evidence shows them to be true or false. Instructions so declaring the law have been uniformly approved by this court. State v. GIazebrook (Mo. Sup.) 242 S. W. loc. cit. 933; State v. Schnurr, 285 Mo. loc. cit. 76, 225 S. W. 678; State v. Liolios, 285 Mo. loc. cit. 24. 225 S. W. 941; State v. Wansong, 271 Mo. loc. cit. 60, 105 S. W. 999: State v. Creeley, 254 Mo. 393, 162 S. W. 737...
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