State v. Nienaber

• Decision Date: 25 July 1941
• Docket Number: 37556
• Citation: 153 S.W.2d 360
• Parties: STATE v. NIENABER
• Court: Missouri Supreme Court

153 S.W.2d 360

STATE v. NIENABER

No. 37556

Supreme Court of Missouri, Second Division

July 25, 1941

Don C Carter, of Sturgeon, for appellant.

Roy McKittrick, Atty. Gen., and W. J. Burke, Asst. Atty. Gen for respondent.

OPINION

TIPTON, Presiding Judge.

An information was filed in the Circuit Court of Boone County Missouri, charging the appellant with obtaining property under false pretenses, under Section 4487, R.S.(Mo.)1939, Mo.St.Ann. § 4095, p. 2894. A change of venue was granted to Howard County. Upon trial, appellant was found guilty and sentenced to two years' imprisonment. He appeals.

Appellant attacks the information, which is almost identical with the information in the case of State v. Nienaber, Mo.Sup., 148 S.W.2d 1024. This appellant was the defendant in that case, wherein we held the information was sufficient. On authority of that case we overrule the appellant's contention.

Appellant next contends that the trial court should have sustained his demurrers to the evidence. The evidence shows that George Barkwell purchased two cows at a public auction and placed the cows on the farm operated by appellant. The agreement between Barkwell and the appellant was such that appellant was to care for the cows and was to receive fifty per cent of the increase. The appellant sold the cows to the Ill-Mo. Cattle Company without the knowledge or consent of Barkwell. When the purchasers learned that the cows belonged to Barkwell they returned them to him. In his brief, the appellant says that, 'The sole point we desire to stress under these points is that the evidence on the part of the State showed that the defendant had an undivided interest in the two cows in question, by way of partnership therein with the witness, George Barkwell; therefore, the sale of the two cows to Ill.-Mo. Cattle Company, under the circumstances, does not constitute the offense with which defendant stands charged.'

The evidence fails to disclose any partnership agreement. Appellant did not own any interest in these cows, he only had an interest in their increase. It was a joint adventure, but not a partnership. Hence, the demurrers were properly overruled.

The next assignment of error is that, 'The court erred in permitting the prosecuting attorney, in his opening statement of the case to the jury, to state that the evidence would show that the defendant had fled the country and had to be extradited, when the prosecuting attorney knew that defendant had left the country for an entirely different offense, for which he had already been tried and convicted.' This exact point has already been ruled against this appellant in the case of State v. Nienaber, supra.

The appellant also contends that, the 'Court erred in refusing to rebuke the prosecuting attorney and discharge the jury, upon the timely objection and request of defendant, when he told the jury in his opening statement of the case, that they should convict the defendant, 'If you believe all the testimony to be true and I believe it to be true.' This statement of the prosecution attorney was an expression of his opinion that the defendant was guilty.'

The record does not sustain the appellant, but it shows that the prosecuting attorney said, 'If the testimony sustains the facts as I have related them to you, and I am sure they will '. This is not...