State v. Nibarger
| Decision Date | 17 November 1936 |
| Citation | 98 S.W.2d 625,339 Mo. 937 |
| Parties | The State v. Luther Nibarger, Appellant |
| Court | Missouri Supreme Court |
Rehearing Overruled August 20, 1936. Motion to Transfer to Banc Overruled November 17, 1936.
Appeal from Grundy Circuit Court; Hon. A. G. Knight, Judge Opinion filed at May Term, 1936, June 30, 1936; motion for rehearing filed; motion overruled August 20, 1936; motion to transfer to Court en Banc filed; motion overruled at September Term, November 17, 1936.
Affirmed.
Scott J. Miller for appellant.
(1) There was no proof that the defendant was closer than his home, nine miles from the scene of the burglary, at the time of the commission thereof. State v. Duvall, 76 S.W.2d 1097. (2) The court committed error in the failure to instruct on the good character of the defendant. State v Dilley, 76 S.W.2d 1085. (3) There was no substantial testimony direct or indirect to support a verdict. State v. Dilley, 76 S.W.2d 1085. (4) There is no evidence that defendant was present at the time and place where the larceny was committed. This is absolutely necessary to a conviction. State v. Duncan, 50 S.W.2d 1023; State v. Harvey, 131 Mo. 346; State v. Tatlow, 136 Mo. 684. (5) Upon the evidence, the court should have instructed the jury to find defendant not guilty. State v. Scott, 177 Mo. 673. (6) The conviction cannot stand on the circumstantial evidence offered because the facts and circumstances relied upon are not irreconcilable with the innocence of defendant. All of such facts may be true and yet defendant be innocent. That being true, the conviction cannot stand. State v. McMurphy, 25 S.W.2d 82; State v. Spires, 65 S.W.2d 1058; State v. Capps, 311 Mo. 699; State v. Buckley, 309 Mo. 48; State v. Ruckman, 253 Mo. 487. (7) A conviction based solely on suspicion will not be permitted to stand. State v. Singleton, 294 Mo. 364; State v. Shields, 58 S.W.2d 298; State v. Pinto, 312 Mo. 106; State v. Tracy, 284 Mo. 619. (8) More naked possession of stolen goods is no evidence that the defendant received the same knowing them to have been stolen. State v. Bulla, 89 Mo. 585; State v. Richmond, 186 Mo. 81; State v. Spires, 65 S.W.2d 1057.
Roy McKittrick, Attorney General, William W. Barnes and Wm. Orr Sawyers, Assistant Attorneys General, and Aubrey R. Hammett, Jr., Special Counsel, for respondent.
(1) Proof of recent possession by the accused of the property recently stolen is only a circumstance, and no more requires an instruction than any other circumstance. State v. Swarens, 294 Mo. 155, 241 S.W. 934. (2) There was evidence upon which to base cautionary Instruction 9, on the weight and value of voluntary statements made by defendant after crime was committed. (3) There was sufficient evidence to submit the case to the jury and the demurrer as to burglary was properly overruled. State v. Henke, 313 Mo. 627, 285 S.W. 392; State v. Simmons, 58 S.W.2d 303, 332 Mo. 247; State v. Martin, 56 S.W.2d 138; State v. Berkowitz, 325 Mo. 526, 29 S.W.2d 150.
Westhues, C. Cooley and Bohling, CC., concur.
Appellant was tried upon a charge of burglary and larceny. A jury acquitted him of the burglary but found him guilty of grand larceny and assessed a punishment of two years' imprisonment in the penitentiary. Being unsuccessful in obtaining a new trial he appealed.
The information charged the crime to have been committed on the 29th day of October, 1933, in Grundy County, Missouri. The evidence in support of the charge was substantially as follows: William H. Williams lived on a farm in Grundy County, about seven miles north of Trenton. Two sets of harness, valued at forty dollars, stored in a barn on the Williams farm, were stolen on the night of October 29, 1933. Entrance to the barn was gained by cutting a hole in the door so that the latch could be lifted and the door opened. About December 8, following, Williams was advised by a neighbor that if he would go to Chillicothe on a certain day he could find his harness upon a team of appellant. Acting upon this advice Williams went to Chillicothe and located a part of his harness on appellant's team. Upon inquiry as to where appellant had obtained the harness he immediately replied that a man named Clingensmith had given it to him in trade for a calf. When asked where the other part was appellant replied that it was home in his barn. The harness was found there and Williams recovered the one set. The other set was not found. Appellant was asked at the time why he did not have the complete set on the team and he replied that Clingensmith had told him: "You are a poor man, you put them harness all on together on your horses, somebody will think they were stolen harness." Clingensmith and appellant were arrested and charged with burglary and larceny. The charge against Clingensmith was dismissed by the prosecuting attorney the day before the trial of appellant. Clingensmith testified for the State. His evidence in substance was that about midnight on October 29, he received a telephone call asking him to come to a certain point on a road about five miles out in the country; that when he reached the place he found one Nannce Dixon, appellant and appellant's father, Albert Nibarger, in a disabled model T Ford. He also testified that at their request he used his car and pulled the disabled car to the home of appellant; that there were four filled sacks in the car, two of which were left at appellant's home; that he took the other two sacks and Albert Nibarger to the Albert Nibarger home in his car and when the sacks were taken from the car he heard the rattling of chains. Clingensmith further testified that on the Sunday following, while in a poker game with appellant, appellant informed him that the sacks the witness had hauled on the night of October 29, had contained harness which had been obtained over about Hickory Creek from a man named Williams.
Appellant denied the crime and testified that he was at home on the night of October 29. On direct examination he was not asked, and therefore not cross-examined, with reference to his dealings with Clingensmith, nor did he testify from whom he had obtained the harness. Neither did he deny having made the statements he is alleged to have made, as testified to by the State's witnesses.
A number of witnesses testified in support of the alibi. These witnesses testified that they were at the home of appellant all night on October 29, and that appellant did not leave the premises. Two other witnesses testified for appellant that they saw Clingensmith at the home of appellant and heard talk of trading harness for a calf. One of these witnesses stated that he saw Clingensmith deliver the harness to appellant a few days after October 29. Clingensmith's reputation for truth and veracity was impeached. He also admitted, while on the stand, that he had been convicted of crime.
Appellant made numerous assignments of error in his motion for new trial, many of which were briefed. Most of these pertain to the sufficiency of the evidence to sustain a conviction. In the brief we find the statement that there was no evidence that appellant was present at the time and place where the larceny was committed; that this was necessary to a conviction, citing State v. Duncan, 330 Mo. 656, 50 S.W.2d 1021, l. c. 1023, and other cases. The evidence in this case was more substantial than in the Duncan case. In the Duncan case possession of the stolen property, six weeks after it had been taken, was all the testimony against the defendants. An explanation was made of its possession. The defendants lived more than twenty-five miles from the place where the property was stolen. No evidence was introduced showing that they had ever been in the neighborhood. Those facts of course were quite different from the facts in this case. Here we have evidence that appellant was on the public road, even though a number of miles from the scene of the crime, on the night the theft occurred, in possession of property, which he later stated was harness he had obtained from a man by the name of Williams. We also have his statement, when asked why he mixed the harness with other harness, that he did it because he was advised that people would think he had stolen harness if he put the full set on his horses. This, of course, indicated guilty knowledge. Upon the witness stand he failed to deny the alleged incriminating statements attributed to him. He made no explanation of his possession of the harness. It is, therefore, apparent that the evidence in this case is sufficient to support a verdict. In the Duncan case all of the evidence introduced by the State could have been true and yet the defendants could have been innocent. Such is not the case here.
Appellant has invoked the rule that evidence thoroughly impeached is no evidence at all. It is argued that Clingensmith was so thoroughly impeached that this court should not take his evidence into consideration when passing upon the sufficiency of the evidence. [State v. Packwood, 26 Mo 340; State v. Primm, 11 S.W. 732, 98 Mo. 368, l. c. 373; State v. Huff, 161 Mo. 459, l. c. 487, and State v. Fitzsimmons, 338 Mo. 230, 89 S.W.2d 670, l. c. 672.] In the Fitzsimmons case we held that the rule was not applicable to the facts there in evidence. The principle announced in the other cases cited was applied in a more recent case, that of State v. Liston, 315 Mo. 1305, 292 S.W. 45. This court said: "De Hart's evidence bears all the earmarks of fiction and of having been inspired by malice." Also, "Leaving De Hart's evidence out of consideration, there is not a circumstance in the case that is not consistent with the theory of Liston's innocence of the charge." De Hart had served terms in penitentiaries in four...
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