State v. Nave

• Decision Date: 16 February 1918
• Docket Number: No. 20434.,20434.
• Citation: 201 S.W. 88,273 Mo. 366
• Parties: STATE v. NAVE.
• Court: Missouri Supreme Court

201 S.W. 88

273 Mo. 366

STATE v. NAVE.

No. 20434.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Appeal from Circuit Court, Taney County; Fred Stewart, Judge.

Fred Nave was convicted of larceny of a cow, and he appeals. Affirmed.

Upon an information charging him with the larceny of one black cow, the property of one C. G. Awbrey, defendant was tried in the circuit court of Taney county, found guilty, and his punishment assessed at two years in the penitentiary. Defendant has duly perfected an appeal.

The crime was alleged to have occurred on the 23d day of August, 1915.

Upon the part of the state the evidence tends to establish the following facts:

Prosecuting witness Awbrey lived on a farm about one mile northwest of Protem, Taney county, Mo., and owned a black cow and a heifer, which were running out on the range about two and one-half miles from Awbrey's home, and about four miles north of the Arkansas state line. The black cow weighed about 1,000 pounds, wore a bell, and is described by Awbrey as follows:

"She was a black cow, and had white on her belly and white on her flank, and her right front foot was white; that is all the white there was about her."

About the last of July or the first of August, 1915, the heifer "came up" without the cow, and the owner never saw the black cow after that date. Several cattle ran on this range. The extent of the range is not given. The owner made a search, but was unable to find the cow. A road leading from the neighborhood in which Awbrey lived went in a westerly direction about four miles, passing the farm of one Bud Ellison, and there turned in a more northerly direction towards the farm of Lee Jenkins. The Jenkins farm was four or five miles north of the Bud Ellison farm. One Sunday night in 1915, and about threshing time, Bud Ellison heard a strange cowbell in the road which passed his house. He did not see the cow which wore the bell, nor did he see any one driving cattle, because it was too dark. He testified, however, that Awbrey's cattle were not in the habit of running around his place. In November of 1915, C. B. Wood and his son were going along the road which runs from the Bud Ellison farm to the Lee Jenkins farm, and at a point about one mile south of the Lee Jenkins farm the boy discovered a cowbell at the edge of the road. The bell had a small piece of leather strap attached which had the appearance of having been gnawed by rats. The bell was filled with decayed grass, etc., which had the appearance of having been stuffed into the bell. They took the bell home with them, and a few months later Awbrey, having heard of the incident, called at the Wood home, and after describing the bell which was formerly on his cow, which tallied with the description of the bell, was given possession of the bell. This bell was introduced in evidence at the trial and was identified by Awbrey as the bell which was worn by his black cow at the time of her disappearance from the range.

One Monday morning in July or August, 1915, the defendant and another man, unknown to the witness, came to the farm of Lee Jenkins driving two cows, one black and one red, and asked Jenkins if he could get a place to put his cows. Jenkins told defendant to put them in a lot, but defendant said that he would prefer a pasture. Jenkins then told defendant to put them in a nearby alfalfa field. Jenkins in describing the cow testified that she would weigh between 900 and 1,000 pounds; that "she was a black cow; I remember she had a little white on both hind feet, and she was black from the top to the brisket." On being further examined as to the white upon the cow, he said, "I don't remember; I remember noticing some white on her feet." On cross-examination this witness testified as follows:

"Q. Which of her feet were white? A. Each one of her hind feet. Q. You did not notice any white except upon her hind feet? A. Not that I noticed of any more."

After placing the two cows in the alfalfa field defendant went to a neighboring ranch to get another cow, which he claimed belonged to him, and after returning with the other cow defendant and his helper drove the three cows to "Bud Sherald's." The witness Jenkins had some cattle which he also on that day took over to Sherald's. After the cattle were driven to Sherald's defendant sold his three cows to a man by the name of Brown Morrison from Illinois. Jenkins knew that defendant was coming with the cattle because the defendant had told Jenkins on the Saturday before that he was going to drive some cattle up to his place on the next Monday morning, and that they would drive their cattle together over to Sherald's. Defendant did not tell Jenkins from what place he was going to bring the cattle, but the witness presumed he was going to bring them from home. The witness also testified that the black cow did not have any bell on her when defendant drove her up to his farm on that day.

A few weeks after the cow disappeared a warrant was issued for the arrest of the defendant. The next day after the warrant was issued defendant went to Awbrey's house, told Awbrey that he did not think Awbrey had done him right, and that Awbrey "didn't get the right fellow." He further told Awbrey that he had bought the cow from a man named Sissom down at the "Chigre schoolhouse neighborhood in Arkansas." Defendant also told Awbrey that the cow he was driving did not have a bell, but that while he was driving the cow on the night in question an old roan cow wearing a bell followed them some distance near the home of Bud Ellison until he separated the roan cow from his cows and started the roan cow in an opposite direction. Defendant told Awbrey that he could prove where he bought the cow by one Abner Pemberton and Richard Mullinax, and that Mullinax helped him drive the cow that night.

Mr. Charley Ayers, the constable, testified that after the warrant for defendant's arrest was delivered to him he was unable to find the defendant; that he went to the home of defendant's father and inquired, and was told that defendant was at another place. The constable left word for defendant to meet him at Protem. The constable heard that afterwards the defendant came to Protein that same day but did not stay. A few days later the constable heard that defendant was leaving the country, and followed him as far as Bradleyville, but upon arriving at Bradleyville learned that defendant had taken the hack and departed.

Upon the part of the defense the evidence tends to establish the following facts:

Defendant, testifying in his own behalf, stated that he was 22 years old, and that in the summer of 1915 was engaged in farming and buying and selling stock on a small scale; that during that summer he bought a "black" cow and a red one from Albert Sissom, who lived near the Chigre Hill schoolhouse, in Marion county, Ark.; that no one was present when he made the purchase, but just after the defendant paid for the cattle one Harry Long rode up, and Sissom said, "Fred [meaning the defendant], do not say anything about buying them cattle for a few days; I owe some fellows, and I want to leave and work and I will be back and pay them." Defendant told him that was all right with him. On cross-examination defendant testified he never asked Sissom where he got the cows. The defendant and Long started down the road, and met Albert Pemberton, and defendant told him that he had bought some cows, and pointed them out to Pemberton. While the three were looking at the cows, Sissom came up from the brush and said, "Nave, I thought you was not going to say anything about me selling those cattle;" and defendant replied, "I haven't"; and Sissom said, "That is all right." Defendant tried to engage Long to help him drive the cattle out. He testified that Chigre Hill schoolhouse was about 3½ or 4 miles from the home of Awbrey. In specifically describing the cow the defendant said: "As I said a while ago, I think she weighed 920 pounds, and she had some white on her; she was a tolerable heavy cow; she was heavy made from the shoulders down. I would judge her to be about seven or eight years old." He further testified that the cow did not have any bell on. After buying the cattle defendant said he permitted them to remain where they were for about a week, and he found a man who was willing to purchase them if he could get them over to Bud Sherald's. He employed Richard Mullinax to help drive the two cows over there. Mullinax told defendant that he could not...