State v. McMurphy

• Citation: 25 S.W.2d 79,324 Mo. 854
• Decision Date: 19 February 1930
• Docket Number: 30157
• Parties: The State v. Ernest McMurphy and Henry McMurphy, Appellants
• Court: United States State Supreme Court of Missouri

25 S.W.2d 79

324 Mo. 854

The State v. Ernest McMurphy and Henry McMurphy, Appellants

No. 30157

Supreme Court of Missouri

February 19, 1930

Appeal from Johnson Circuit Court; Hon. C. P. Woodbury Special Judge.

Reversed and remanded.

Wm E. Suddath, Leslie & Moritz and M. D. Aber for appellants.

(1) The evidence does not sustain the charge. Robinson v State, 12 Mo. 592; State v. German, 54 Mo. 526; State v. Ballard, 104 Mo. 634; State v. Scott, 177 Mo. 665; State v. Morney, 196 Mo. 45; State v. Gordon, 199 Mo. 561; State v. Francis, 199 Mo. 671; State v. Goddard, 216 Mo. 172; State v. Miller, 234 Mo. 588; State v. Young, 237 Mo. 170; State v. Counts, 234 Mo. 580; State v. Ruckman, 253 Mo. 501; State v. Lee, 272 Mo. 121; State v. Bowman, 294 Mo. 245; State v. Singleton, 294 Mo. 346; State v. Hollis, 284 Mo. 627; State v. Mullinix, 301 Mo. 385; State v. Adams, 308 Mo. 664; State v. Buckley, 309 Mo. 38; State v. Capps, 311 Mo. 683; State v. Mohr, 316 Mo. 204; State v. Tracy, 284 Mo. 619; State v. Goddard, 316 Mo. 172; State v. Duncan, 317 Mo. 451. (2) In every criminal prosecution, a corpus delicti must be proved before the State has a right to ask a conviction. Such corpus delicti consists not only of the objective crime itself, but also of the agency of the accused in it. State v. Jones, 106 Mo. 302; State v. Baker, 144 Mo. 323; State v. Crabtree, 170 Mo. 642; State v. Morney, 196 Mo. 43; State v. Francis, 199 Mo. 671; State v. Goddard, 216 Mo. 172; State v. Miller, 234 Mo. 588; State v. Bass, 251 Mo. 126; State v. Bowman, 294 Mo. 245; State v. Goodson, 299 Mo. 321. (3) Absent proof of the corpus delicti beyond a reasonable doubt, proof of declarations or statements, even extra-judicial confessions, are incompetent and immaterial and will neither authorize nor sustain a conviction. State v. German, 54 Mo. 526; State v. Ballard, 104 Mo. 634; State v. Baker, 144 Mo. 323; State v. Young, 237 Mo. 177; State v. Meyer, 293 Mo. 108; State v. Bowman, 294 Mo. 245; State v. Mullinix, 301 Mo. 385; State v. Adams, 308 Mo. 664. (4) In a case depending upon circumstantial evidence, a case may not be made by building an inference upon an inference. State v. Lackland, 136 Mo. 33; State v. Capps, 311 Mo. 683; State v. Ross, 300 S.W. 717. And this is true in matters involving mere property rights, and not, as in this, good name, citizenship and liberty. Yarnell v. Railroad, 113 Mo. 580; Hamilton v. Railroad, 250 Mo. 722; Swearingen v. Railroad, 221 Mo. 659; Hays v. Hogan, 273 Mo. 1; Phillips v. Ins. Co., 288 Mo. 427; State ex rel. v. Cox, 298 Mo. 427. (5) The State's principal instruction, D, was erroneous, in that it authorized the jury to return a verdict of guilty without taking into consideration the defense offered. State v. Collins, 292 Mo. 102; State v. Slusher, 256 S.W. 817.

Stratton Shartel, Attorney-General, for respondent;

G. C. Weatherby of counsel.

(1) One of the things that must appear beyond a reasonable doubt in this case is, that the cows sold by the defendants to the M. K. & T. Company were the property of the complaining witness. There being no direct evidence of the taking, that is, no one who saw the cows taken from the premises of the complainant, or from any other place under circumstances that cast the burden upon defendants to explain their taking and possession, it devolved upon the State not only to identify the missing cows wherever found, but to connect their disappearance with some act of the defendants. It is apparent, therefore, that it must be left to conjecture whether the six cows bought by Bowersock from Lewis and resold to Cresap were the same cows that the defendants sold to Dorsett. There is nothing in the record connecting defendants with the taking and asportation of the six cows, except the evidence to the effect that the defendants offered to pay for the cows in order to end the trouble. These statements made by the defendants taken in connection with the other facts and circumstances in evidence are not sufficient to establish the corpus delicti. State v. Skibiski, 245 Mo. 463; State v. Lee, 182 S.W. 973; State v. Flowers & Jones, 311 Mo. 515; State v. Morro, 313 Mo. 108; State v. Capotelli, 316 Mo. 256; State v. Emerson, 318 Mo. 643; State v. Bennett, 6 S.W.2d 882. (2) Appellants' claim Instruction D is erroneous because it ignores the defense offered. The defense was that the cows sold by defendants were their own cows taken from their own herd that was purchased at the Kansas City stock yards by William McMurphy and later became the property of defendants Henry and Ernest McMurphy, except the red cow which was raised on the farm by defendant, Ernest McMurphy. The instruction does not take into consideration this defense. It purports to cover the whole case. In State v. Slusher, 256 S.W. 819, a similar instruction was held erroneous. See also State v. Collins, 292 Mo. 111.

Henwood, C. Davis and Cooley, CC., concur.

OPINION

HENWOOD

An information was filed in the Circuit Court of Johnson County by which the defendants were jointly charged with stealing six cows, the property of J. E. and J. R Eberts, of the value of $ 573.70. They were tried together, found guilty, sentenced to imprisonment in the penitentiary for two years, and, in due course, have perfected an appeal to this court.

At the time in question, J. E. Eberts owned a farm of 1010 acres five miles south of Warrensburg, in Johnson County. He and his son, J. R. Eberts, were jointly interested in farming and in raising cattle. Immediately across the public road on the west side of the Eberts farm was the home farm of Levi McMurphy, deceased, father of the defendants, consisting of 485 acres. The defendant Henry McMurphy lived on this farm, which he and his brother, Levi, Jr., owned, subject to their mother's life estate, and operated for their mother, as directed by their father's will. They also raised cattle on this farm. The defendant Ernest McMurphy owned a farm of 200 acres, situated a quarter of a mile south of the Eberts' farm, where he lived and was engaged in raising hogs and calves. The Eberts and McMurphy families had been friendly neighbors for many years, and, so far as the record shows, the prosecuting witnesses and the defendants in this case were regarded as good citizens by the people residing in that vicinity.

In substance, the evidence adduced by the State is as follows: The Eberts had forty-two cows. Their cows frequently strayed out of their pasture and into the McMurphy pasture and on and along the public road between the two pastures. On Saturday, September 1, 1928, six of their cows, five white-faced and one red, were missing. These six cows were never found, but twelve of their cows were found in the McMurphy pasture on the following Monday. A few days later, J. R. Eberts learned from one Brockman, a truckman at Warrensburg, that, on August 29, 1928, one of Brockman's trucks hauled six cows for the defendants from the loading chute on Ernest McMurphy's farm to the Kansas City stockyards. These cows were loaded and taken to Kansas City for the early morning market at the usual time and in the usual way. Brockman had handled previous shipments of cattle for the defendants in the same way. J. R. Eberts went to the Kansas City stockyards, where he learned that Henry B. Forsett, owner of the M. K. & T. Commission Company, had received six cows from the defendants which he sold to Charlie Lewis, a speculator connected with Fry & Pringle, brokers; that Charlie Lewis sold six cows to Frank Bowersock, a salesman for the Less-White Commission Company, and that Frank Bowersock sold the last-mentioned six cows to Charles V. Cresap, a buyer for Armour & Company, all on August 29, 1928. Upon further inquiry, he learned that the last-mentioned six cows were among the 1000 cattle, or more, slaughtered by Armour & Company on August 30, 1928. At the packing house of Armour & Company, he examined twenty-five or thirty hides out of an assortment of 130 to 150 hides of these cattle. Among the twenty-five or thirty hides, he found one which he said he "recognized," by its color and the "s" brand on the left hip, as the hide of the missing red cow. He arranged for this hide and six or seven others to be laid aside, and went home and inspected the brands of the cows on the farm. When he returned to the packing house and made a further examination of these hides, he picked out two hides, of white-faced cows, with open "A" brands, and one hide, of a white-faced cow, with a "U" brand, which brands he said were "similar" to the open "A" brand and the "U" brand on some of the cows on the farm. J. E. Eberts also went to the packing house and examined the seven or eight hides which had been laid aside. He said he was able to "identify" one of these hides, by its color and the "s" brand on the left hip, as the hide of the missing red cow; and that the open "A" brand on two of these hides, of white-faced cows, and the "U" brand on one of these hides, of a white-faced cow, "corresponded" to the open "A" brand and the "U" brand on some of the cows on the farm, but he said he was not "sure" of the similarity of these brands until after he had gone home and inspected the brands of the cows on the farm. Other witnesses for the State said that the open "A" and "U" brands on these three hides were similar to the open "A" and "U" brands on some of the Eberts cows.

Henry B. Dorsett, owner of the M. K. & T. Commission Company testified: He received five white-faced cows and one red cow from the defendants on August 29, 1928. He observed that four of the white-faced cows were branded on the left side, about a foot back of the shoulder, but could not say what the brands were. He saw only the right side of the other white-faced cow and the...