State v. Nichols, 36469.
| Citation | 130 S.W.2d 485 |
| Decision Date | 07 July 1939 |
| Docket Number | No. 36469.,36469. |
| Parties | STATE v. NICHOLS. |
| Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Polk County; Warren L. White, Special Judge.
L. A. Nichols was convicted of grand larceny and he appeals.
Affirmed.
J. P. Smith, of Marshfield, for appellant.
Roy McKittrick, Atty. Gen., and Tyre W. Burton, Asst. Atty. Gen., for the State.
The appellant was charged with the crime of grand larceny in the circuit court of Webster County, Missouri. The case was sent to Polk County on a change of venue, where the appellant was convicted and his punishment assessed at imprisonment in the state penitentiary for a term of two years.
In his brief, the appellant challenges the sufficiency of the evidence to sustain the verdict, and also challenges instruction number one.
The appellant was charged with having stolen seven sheep from Sam Trimble who owned a farm near Seymour, in Webster County. Trimble was a banker in Springfield and his farm was operated by John Rush. On August 27, 1937, seven registered Shropshire sheep were taken from his farm and they were finally located in the possession of H. E. Massey in Laclede County. Massey bought the sheep at a community sale held at Lebanon, Missouri, on August 28, 1937, paying $52.50 for them. The sale was conducted by A. J. Walker, who testified that the sheep were brought there by the appellant, and the appellant admitted that he sold the sheep at the community sale, but stated that he bought them from a man at Seymour during the evening of August 27, 1937. He did not know the man from whom he claimed he purchased the sheep, but stated the man said he was from Arkansas and that he had the sheep in a truck with three cows. The sheep found on Massey's farm were identified by both Trimble and Rush; in fact, the appellant did not deny they were Trimble's sheep.
Section 4064, R.S.Mo.1929, Mo.St. Ann. § 4064, p. 2865, declares, among other things, the stealing, taking and carrying away of any sheep belonging to another to be grand larceny, regardless of the value of the sheep.
" State v. Kennon, Mo.Sup., 123 S.W.2d 46, loc. cit. 47.
The appellant admitted that he had possession of the sheep the very night they were missed from the Trimble farm and that he took them from Webster County to Lebanon where he sold them the next day. It is true that the appellant tried to explain his possession of the sheep by saying that he purchased them from a stranger at Seymour the evening they were missed from Trimble's farm. The appellant testified that he had never seen, before or afterward, the man from whom he purchased the sheep, but that the man told him he was from Arkansas and that he had an Arkansas license on his truck. The jury are to weigh the evidence. They may or may not believe the appellant's explanation. They had a right to disbelieve it and to infer from such possession that the appellant was guilty. State v. Slusher, 301 Mo. 285, 256 S.W. 817; State v. Tisher, Mo.Sup., 119 S.W.2d 212.
The facts in this case are very similar to the facts in the case of State v. Kennon, supra, and in that case we held the demurrer was properly overruled. While recent possession of stolen property is not proof of guilt as a matter of law, it is sufficient to submit the question of guilt to a jury. In such cases, the explanation of the defendant's possession of the...
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