State v. Murphy

• Decision Date: 21 April 1947
• Docket Number: 39807
• Citation: 201 S.W.2d 280,356 Mo. 110
• Parties: State v. C. E. Murphy, alias Edward Burnes, Appellant
• Court: Missouri Supreme Court

201 S.W.2d 280

356 Mo. 110

State v. C. E. Murphy, alias Edward Burnes, Appellant

No. 39807

Supreme Court of Missouri

April 21, 1947

Appeal from Holt Circuit Court; Hon. Richard B. Bridgeman Judge.

Reversed.

Lewis F. Randolph for appellant.

(1) Where evidence is entirely circumstantial and is not inconsistent with the innocence of accused, it is insufficient to sustain a verdict of guilty. State v Archer, 6 S.W.2d 912; State v. Tracy, 284 Mo 619; State v. Scott, 177 Mo. 665.

J. E. Taylor, Attorney General, and C. B. Burns, Jr., Assistant Attorney General, for respondent.

The evidence is sufficent. State v. Allen, 342 Mo. 1043, 119 S.W.2d 304; State v. Concelia, 250 Mo. 411, 157 S.W. 778; State v. Turner, 106 Mo. 272, 17 S.W. 304; State v. Busby, 289 S.W. 806; State v. Harty, 213 S.W. 442; State v. Graves, 95 Mo. 510, 8 S.W. 739.

OPINION

Conkling, J.

C. E. Murphy (hereinafter called defendant) was convicted in Holt County of the larceny on July 27, 1945, of a stationary gasoline engine, valued at about fifty dollars, the property of one Uhel Banks. Upon the jury's verdict he was sentenced to five years imprisonment and appealed. In this court he makes the sole contention that the evidence was not sufficient to authorize the trial court to submit the case to the jury.

The evidence is wholly circumstantial as to defendant's connection with the theft. In view of the defendant's contention in this court, we state the evidence most favorably to the state. Banks lived on a farm about a mile and a half east of Forbes, Missouri, on a public gravel highway. Lloyd Kirk, who was Banks' employee, lived on another farm on the same highway about half a mile east of the Banks' house. The engine in question was kept by Banks in the yard of a vacant farm house north of and abutting the same highway and located about halfway between the Banks' home and the Kirk home. The engine, on a base 16 to 18 inches wide, was 16 to 17 inches high, about 30 inches long, weighed from 125 to 150 pounds, was "strapped" to a wooden chunk and was located about 125 feet north of the gravel highway. It was used each day to pump water for livestock. The engine was not visible from either house but was visible from the highway in front of the vacant house. Kirk, when passing the vacant house, saw the engine at its usual place about 6:30 or 7 a.m. on the morning it was stolen. About 1 p.m. the same day Kirk stopped in the highway near the vacant house to start pumping water for the stock and discovered the engine was missing.

Defendant, who lived in St. Joseph, Missouri, in his business of cleaning septic tanks and cesspools used a specially equipped truck, green in color, with pump jacks visible above the bed. The name "C. E. MURPHY" was painted on the bed in large letters. This truck was over the above mentioned gravel highway several times on the day of the theft. At 8:30 or 9 a.m. the truck passed west, it later went east and later, at or about one p.m., again went west. About one p.m. defendant's truck was stopped on the side of the highway, headed west, and a short distance east of a point on the highway which was directly south of the place where the engine was used in the yard of the vacant house. Two men were seen on the highway by the truck. Kirk saw the truck start up moving west and pass him as he went east on the highway toward his home on a tractor. About an hour later when on his way back to work after his noon meal Kirk found the engine was missing. There were footprints around the place where the truck had been stopped on the highway and sewage was spilled on the ground there. Footprints around the place where the pump had been in the yard of the vacant house were of two sizes, but were not measured or compared with footprints in the highway, but appeared to be the same. The witness "couldn't say" that the footprints were the same, and did not undertake to say so. There was a bank at the side of the highway and it was uphill from the highway to the yard where the engine had been used to pump water. There was a path through the weeds up the bank near where the truck had been stopped and in that path the weeds and vegetation were freshly tramped down. Footprints were discernible therein, but those footprints were not measured or compared with those in the highway, nor with those around where the engine had been. About 1:15 p.m. the defendant's truck with his name painted in large letters on the side thereof was in Forbes, Missouri, only a mile and a half from Banks' farm. It was stopped at the Hicks Service Station where ten gallons of gasoline were purchased for the truck. The man who purchased the gasoline solicited the job of then and there cleaning the septic tank at the Hicks Filling Station.

Of all the witnesses who testified they saw defendant's truck on the day of the theft on the gravel highway or in Forbes, Missouri, shortly thereafter, no one testified that the engine, nor any similar appearing object, in sight or covered up, was in defendant's truck. The gasoline engine was not later found, nor was it accounted for at the trial. No one identified defendant as being in Holt County on the day in question, but a few days later in St. Joseph defendant admitted to the Sheriff of Holt County "I was up that road -- I came through there looking for business."

Inasmuch as the evidence of defendant's agency in the theft is entirely circumstantial the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other and with the hypothesis of defendant's guilt, but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence. State v. Freyer, 330 Mo. 62, 48 S.W.2d 894; State v. Pritchett, 327 Mo. 1143, 39 S.W.2d 794; State v. Archer (Mo. Sup.), 6 S.W.2d 912.

In ruling the sufficiency of the evidence to support a verdict of guilty, even in cases where the evidence is wholly circumstantial, all the substantial testimony tending to support the verdict must be considered as true, and every legitimate inference therefrom favorable to the verdict must be indulged. State v. Allen, 342 Mo. 1043, 119 S.W.2d 304, State v. Smith, 329 Mo. 272, 44 S.W.2d 45. The law requires, however, that the facts and circumstances of record do more than raise a mere suspicion that defendant is guilty as charged for verdicts based on surmise, conjecture, suspicion or mere opportunity to commit the crime cannot be permitted to stand. State v. Schrum, 347 Mo. 1060, 152 S.W.2d 17, State v. Pritchett, supra.

Tested within these legal boundaries, what of defendant's contention that the evidence is insufficient to sustain a conviction? If we assume (and we do so assume) to be true every bit...