State v. Moore

• Decision Date: 30 June 1936
• Citation: 95 S.W.2d 1167,339 Mo. 52
• Parties: The State v. Earl Moore, Appellant
• Court: Missouri Supreme Court

95 S.W.2d 1167

339 Mo. 52

The State v. Earl Moore, Appellant

Supreme Court of Missouri

June 30, 1936

Appeal from Linn Circuit Court; Hon. Paul Van Osdol, Judge.

Reversed and remanded.

P M. Marr for appellant.

(1) The similarity of shelled corn in defendant's possession to that taken from owner's crib was not sufficient to make a submissible case even on the larceny charge. State v Emry, 18 S.W.2d 10. (2) The jury, having acquitted defendant of the larceny charge, leaves the question of sufficiency of evidence on the burglary charge only. There was no evidence that defendant was seen at or near the scene of the alleged burglary. There was no evidence that defendant's automobile was at or near the scene. Proof of burglary hinges entirely on evidence of similarity between defendant's shoes and tracks near the crib. The circumstance alone that a man's shoes fit certain tracks is no proof he made the tracks, where the shoes are of average size, such as are worn by a great many people of the community. State v. Freyer, 48 S.W.2d 899, 330 Mo 62; Heidelbaugh v. State, 79 Neb. 499, 113 N.W. 145. (3) A conviction based upon suspicion or conjecture will not be permitted to stand. State v. Casey, 247 S.W. 114; State v. Duncan, 330 Mo. 656, 50 S.W.2d 1021; State v. McMurphy, 324 Mo. 854, 25 S.W.2d 79; State v. Dilley, 336 Mo. 75, 76 S.W.2d 1085; State v. Perkins, 18 S.W.2d 6.

Roy McKittrick, Attorney General, William W. Barnes and James L. HornBostel, Assistant Attorneys General, for respondent.

(1) The evidence is sufficient to make a case for the jury. State v. Schaeffer, 273 S.W. 249; State v. Harris, 324 Mo. 232; State v. Henke, 313 Mo. 626. (2) The jury was instructed properly upon the question of circumstantial evidence, and to refuse defendant's Instruction C constitutes no error. State v. Lawrence, 71 S.W.2d 743; State v. Trimble, 18 S.W.2d 21.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Appellant and one Lee Griffith were charged jointly by information filed in the Circuit Court of Linn County at Linneus, with the crime of burglary and larceny. Appellant, whom we shall refer to as defendant, was granted a severance and was tried alone. The jury found him guilty of burglary and not guilty of larceny, assessing his punishment for the burglary at two years' imprisonment in the penitentiary. He was sentenced accordingly and, after unavailing motion for new trial, has appealed.

The evidence was wholly circumstantial. The State's evidence tended to show the following:

Guy Johnson, the prosecuting witness, lived at the west edge of Purdin, in Linn County. He owned a farm adjoining Purdin on the west on which, about a hundred yards west of his house, he had a feed lot of three or four acres. A graveled highway runs west from Purdin along the north side of the feed lot. In the feed lot Johnson had a cattle shed and two corncribs, one of which cribs, the one here involved, was about one hundred and fifty yards from the highway. A gate opened from the feed lot onto the highway about directly north of the crib.

Defendant, a farmer, lived with his family about three and a half miles west and north, mostly west, of Purdin. As we understand the record his residence was a half or three quarters of a mile north of the graveled highway, on a public road, not surfaced, which turned off the graveled highway. His residence could be reached from Purdin by one or two other routes, one of which, as described in the evidence, was to go north from Purdin, then west and south, the respective distances not being shown. The most direct way was by the graveled highway and the north and south road above mentioned which passed his residence.

Johnson's corncrib was broken into and a quantity of shelled yellow corn was stolen therefrom on the night of May 24, 1935. The State's evidence indicates that the offense was committed in the early morning of May 25th, before daylight, as a witness, living about an eighth of a mile west of Johnson, heard an automobile pass his house about three-twenty that morning. His testimony tends to show that the car came from the west, stopped half an hour or so in the vicinity of the gate north of Johnson's crib, and then went on east.

Johnson was feeding cattle and hogs in his feed lot. When he went there to feed his stock on the morning of the 25th he discovered that the door of his crib, which he had left fastened the evening before, had been opened and some corn had been taken. The State's evidence sufficiently shows that a burglary and larceny had been committed after he left the crib the evening before. He discovered two sets of men's footprints leading from the gate at the highway to near the crib and back to the highway, and in the highway, between the edge of the gravel and the gate, the tracks of an automobile which had evidently pulled off the graveled portion of the highway and stopped at the gate. The ground there and in the feed lot was soft enough from recent rains to take and retain the impression of the automobile tires and footprints. The footprints nearest the crib had been trampled out by the stock but the evidence justifies a finding that the men who made them had gone from the gate to the crib and thence back several times. Johnson said the tracks indicated that five or six trips had been made. Another witness said that the tracks indicated at least four trips.

Johnson promptly notified the officers, who, on the 25th, went to defendant's residence, armed with a search warrant, and searched the premises. They found seven sacks of shelled yellow corn, estimated to contain ten or twelve bushels, in his smokehouse. They also took from him the shoes he was wearing, -- ordinary work shoes. The shoes had composition soles, with certain described markings on the bottoms of heel and sole. Those markings are not shown to have been peculiar to that particular pair of shoes, but appear from the State's evidence as well as that of defendant, to have been made in the process of manufacture and characteristic of that make of soles and heels. The State's evidence tended to show that one set of the above-mentioned footprints had impressions that "compared" with those markings on the heels and soles of defendant's shoes, and that his shoes were placed in some of the tracks of that set of footprints and were found to fit the imprint. Soil containing one heel imprint, -- but not that of the sole, -- was taken up and preserved, and, together with the shoes, was introduced in evidence. There was no evidence tending to show that defendant's shoes were of an unusual size or had any markings or deformities from repairs, wear or otherwise. Without further detailing the evidence as to the footprints it may be said that the evidence would warrant a finding that one set was made by defendant's shoes or by a pair of similar size and with similar heel and sole markings. The other set of tracks was made by shoes with smooth soles.

The automobile tracks are not described as having any particular markings. They are described thus: "There was two or three different tires on this car. That is, smooth tracks and some wasn't so smooth." The witness who thus described them, the sheriff, found similar car tracks "turning off the gravel north of Purdin and turned back south . . . and went on south and turned back west towards Mr. Moore's house." He said there is a public road that leads to Moore's house. "Q. Where were these car tracks that you found with reference to the road to Mr. Moore's house? A. The last tracks that I seen was east and a little south of Mr. Moore's house." He did not say on what road the tracks went west or on what road he lost them. From his description it could hardly have been on the north and south road that runs from the graveled highway northward past defendant's residence, because he said he last saw them "east and a little bit south" of Moore's house. He did not say how far east.

Another witness testified that he saw car tracks similar to those observed at the above-mentioned gate, at the intersection of the graveled highway and the road leading north therefrom past defendant's home that had been made by a car turning east toward Purdin from said north and south road onto the graveled highway, or vice versa.

Defendant owned a Chevrolet coupe automobile. It was observed and examined by the officers when they searched his premises on May 25th. No evidence was offered as to the kind, or markings, if any, of its tires, or the kind of tracks they would make.

As to the corn: -- Johnson testified that on April 23, 1935, he had bought from Merle Wolf a truckload of shelled corn and another truckload from Leon Smith on April 25th. Both loads were yellow corn, but that bought from Smith had a slightly darker or brighter hue than the other. It had in it some grains with a "reddish cast," and had some rat droppings in it. Both loads were placed in the same bin in his crib, the Smith corn on top. In taking out corn to feed he would scoop from the floor of the bin and the corn rolling down, would become mixed. If the pile of corn was "dug into" from the top, not too deep, -- only one kind, that containing the grains with a reddish cast and the rat droppings, would be obtained. He thought the thieves had "dug into" the pile of corn, not scooped it from the floor of the bin, because, while he had paid no attention to the appearance of the corn pile when he fed his stock on the evening of the 24th, there appeared to be a depression in the top or upper part of the pile on the morning of the 25th, as though some corn had been taken therefrom. He estimated that ten or twelve bushels had been taken but he based that estimate, according to his testimony, chiefly (if not, according to...