State v. Missey
| Decision Date | 18 December 1950 |
| Docket Number | No. 41803,No. 3,41803,3 |
| Citation | 234 S.W.2d 777,361 Mo. 393 |
| Parties | STATE v. MISSEY |
| Court | Missouri Supreme Court |
Earl E. Roberts, Steelville, for appellant.
J. E. Taylor, Atty. Gen., Richard H. Voss, Asst. Atty. Gen., for respondent.
On the 22nd day of October, 1948, the Prosecuting Attorney of Crawford County filed an information against Edgar Coffman and Roy Missey, charging them with a violation of Sec. 4462, Mo.R.S.A. They were charged with being Habitual Criminals, Sec. 4854, Mo.R.S.A., and that on the '16th day of May, 1948, in the County of Crawford and State of Missouri, the said Edgar Coffman and the said Roy Missey, one red, with white-face, calf of the value of $40.00, the property of Oscar Kimberlin, then and there being, unlawfully and feloniously did kill with intent then and there feloniously to steal and convert to their own use the carcass of said calf, * * *.'
The information follows the words of the statute and is sufficient. Sec. 4462, Mo.R.S.A. State v. Spidle, 342 Mo. 571, 116 S.W.2d 96. State v. Hadlock, 316 Mo. 1, 289 S.W. 945. The verdict and judgment are in proper form. State v. Boes, Mo.Sup., 262 S.W. 1019. Sec. 4102, Mo.R.S.A.
They were tried, convicted, and each of them given a sentence of three years in the State Penitentiary. After the appeal was taken, Edgar Coffman died and the case is now here with only Roy Missey as appellant.
The evidence on behalf of the State showed that on the 16th day of May, 1948, which was Sunday, at about 12 o'clock noon, defendants asked one Marion Gregg to take them in his automobile from his home across Campbell Bridge and to the Cedar Grove Schoolhouse, a distance of about 3 1/2 miles. They left Gregg's home about 12 noon and arrived at Cedar Grove Schoolhouse about 12:30. Each of the defendants was carrying a gun, small in size. Relative to the weapons on direct examination, Gregg testified:
'
On cross-examination:
or---- A. I just say small caliber guns; they looked like rifles to me.
'
Upon arrival at Cedar Grove Schoolhouse, defendants got out of the car and Gregg returned to his home after promising them to come back and get them about 5 o'clock. They told Gregg they were going hunting, he last saw them going on down the road in an easterly direction. When Gregg came back after them shortly after 5 o'clock, he brought his wife, who rode with him in the front seat of the car. The two defendants rode in the rear seat. Gregg did not notice that they were wearing wet or bloody clothing, neither did he notice the back seat being wet after they had left the car. Upon arriving at Gregg's house, defendants set their guns on the porch and after visiting for 15 or 20 minutes, left without taking the guns with them. The next morning when Gregg started to work, the guns were still sitting on the porch but when he returned home about midnight the guns were gone. He did not know who had taken them. Gregg testified that defendants did not say they were hunting wolves.
On this same afternoon, about 3:20 o'clock, Oscar Kimberlin, who lived about 1 1/4 miles east of the Campbell Bridge, was rounding up his stock near the Cedar Grove Schoolhouse and he found the hide of a calf stretched out, lying on the ground with the head, feed and part of the legs from the hocks and knees down. The intestines were also lying nearby. He examined the head and hide and by a mark on the ear identified the find as remnants of one of his calves. He noticed where something had been drug from where the hide was found to Brazeal Creek, which was nearby, and the footprints of two men. He went down to the creek and discovered the skinned and opened carcass of his calf submerged in the still part of the cold water, which was about waist deep. The carcass was still warm. Apparently the tracks crossed the creek for they could be seen emerging from the water on the opposite side. A man crossing the stream there would have gotten wet to his waist. There was no boat there or other means of crossing except wading. The tracks seemed to have been freshly made. While Kimberlin was watching the calf, two youngsters came by and one of them had a gun, a 22 calibre. They had been shooting with a rifle some distance away. He immediately notified the Highway Patrol about finding his calf and Patrolman Arnold came to investigate. There was a hole in the calf's head as if a small calibre bullet had entered one side and emerged on the other. They found no bullet. The value of the calf was about $70.00. Before Kimberlin found the hide and carcass, he had salted his cattle at a shed between the Cedar Grove Schoolhouse and the place where the hide and carcass were found. This was about 200 or 300 yards from the creek. While at the shed, he had called his cattle.
Two days later the two defendants were arrested and questioned by the officers regarding the Kimberlin calf. They denied having been in that vicinity on Sunday afternoon, denied having been together or having ridden to the Cedar Grove Schoolhouse with Gregg. Missey said he saw Coffman at a distance only, Sunday afternoon, loading logs. They were taken to the jail at Union, Missouri. There Trooper Arnold questioned them again for about two hours. They were then put in separate but adjoining cells with a solid wall between. The barred doors faced on the corridor, side by side, and they talked through the doors and 'around' the partition. A microphone was hidden near their cell doors, which was connected by wires to earphones in a room adjoining the sheriff's office on the floor below, and by which defendants' conversation could be heard. They talked to each other and notes were made of their conversation by Trooper Arnold who was stationed in the room adjoining the sheriff's office and listened to them through the earphones. That conversation, as testified to by Officer Arnold, was as follows:
'A. And Coffman next said, 'Did you tell him you went anywhere with Gregg?' Missey stated, 'No, sir'. Coffman stated, 'That's the time; if we don't talk too much we will get out of this'. Missey stated, 'I am afraid Gregg talked; they likely to pull some rough stuff.' Coffman stated 'I would like to get to work by Friday anyway'. Missey stated, 'I wish I knew where he went today, likely Rolla'. Missey stated, 'We can get Earl to defend us for $500.00'. Coffman stated 'I hope so'. Missey stated, 'Did he ask you about that Sullivan stuff?' Coffman stated, 'No, I told that Patrolman I hadn't been there for two years, and that is the truth.' Missey stated, 'Did they get them prints of them shoes?' Coffman: 'Yes, that is the only thing they got on us'. Missey stated, 'They didn't get that bullet, that went on through.' Coffman stated 'We will just say what we said and that's all'. Coffman stated, 'Well, I believe we ought to go to sleep, what do you say?' Missey stated, 'Yes."
Upon objection, the italicized portion was stricken out and the jury instructed to disregard it.
The defendants had been brought to the jail at Union before midnight. Trooper Arnold had had them in custody since 5 o'clock and at the jail had placed them in cells about three minutes before they had the conversation which he overheard. He was familiar with their voices and recognized them while listening with the earphones. He had told defendants that he had found footprints near the place where the calf was killed and he was going to make plaster casts of them.
Carrick Mercer, a witness for the State, who lived between the Campbell Bridge and Cedar Grove School, on Sunday afternoon--the day the calf was killed--saw defendants go towards the school in a car with Gregg about two o'clock and later about 3 or 3:30 o'clock, Gregg came back by himself. Still later that same afternoon, Mercer saw Gregg and his wife go by in an automobile towards the school and return with the defendants in the car. There were wolves usually in that neighborhood.
Evidence was also offered to show that Coffman had been convicted of forgery in Franklin County in August, 1937, and it was admitted that he had been convicted of grand larceny in 1940 in Crawford County and was sentenced to two years in the penitentiary. Both of these sentences had been served, less good time, and he had been discharged. It was also admitted that defendant Missey, in October, 1933, had been convicted and sentenced to three years in the penitentiary for arson, second degree, had served his time and had been discharged.
Both defendants testified. They stated that on the afternoon of May 16th, they went to Cedar Grove Schoolhouse with Gregg, and from that point went north, that each of them had a shotgun, that they were going wolf hunting as Coffman had heard some young wolves over in that vicinity a few days before. They had no dogs and killed no wolves. They denied that they had rifles and denied having killed and skinned the calf in question. They said they were never east of Cedar Grove School. Coffman said he borrowed his shotgun from Preston Missey.
Mrs. Gregg, for the defendants, testified that on their return trip from the schoolhouse, on Sunday afternoon, neither defendants' clothing nor the back seat was wet. She and her family went to the show that...
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