State v. Ossendorf

• Decision Date: 09 February 1948
• Docket Number: 40522
• Citation: 208 S.W.2d 209,357 Mo. 366
• Parties: State v. Henry Ossendorf, Appellant
• Court: Missouri Supreme Court

208 S.W.2d 209

357 Mo. 366

State v. Henry Ossendorf, Appellant

No. 40522

Supreme Court of Missouri

February 9, 1948

Appeal from Iron Circuit Court; Hon. Edw. T. Eversole Judge.

Judgment reversed and defendant discharged.

Albert S. Ennis for appellant.

(1) There was not sufficient competent testimony and evidence to sustain the verdict of the jury. State v. Britt, 213 S.W. 425, 278 Mo. 510; State v. Ruznak, 15 S.W.2d 349. (2) The defendant was a joint owner with prosecuting witness of the cattle involved and hence may not be guilty. Johnson v. St. Joseph Stockyards Bank, 76 S.W. 699 102 Mo.App. 395; Merrill v. Mason, 141 S.W. 454; Cote v. Gillette, 186 S.W. 538; Smith v Southern, 236 S.W. 413, 210 Mo.App. 288; Anthony v. Midwest Live Stock Comm. Co., 260 S.W. 94; Bentley v. Hurley, 299 S.W. 604; Kelly's Criminal Law and Procedure (4th Ed.), sec. 652, p. 612.

J. E. Taylor, Attorney General, and John S. Phillips, Assistant Attorney General, for respondent.

(1) The evidence produced by the state was competent and sufficient to sustain the verdict of guilty as rendered by the jury. (2) The defendant and prosecuting witness were not partners and joint owners of the cattle involved. Donnell v. Harsche, 67 Mo. 170; 36 C.J., p. 1712, No. 1959, Note 83.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Appellant, Ossendorf, was convicted in the Circuit Court of Iron County, Missouri, on a charge of embezzling, as bailee, eleven head of cattle and was sentenced to imprisonment in the penitentiary for a term of two years. He appealed.

The evidence introduced by the state reveals the following. The defendant operated a dairy farm near Hillsboro, Missouri, while the prosecuting witness, Frank A. Sodar, operated a store in Hillsboro. In the spring and summer of 1943, cattle were purchased by them under the following circumstances. Sodar furnished the money with which Ossendorf purchased seventeen head of cattle, three cows and fourteen calves. It was agreed that these cattle were to be cared for and placed on the Ossendorf farm. When sold, the amount of cash furnished by Sodar was to be repaid to him and the balance divided equally. The increase of the cattle, and it was admitted that there was some, was also to be divided equally. Ossendorf kept the cattle during the years 1943, 1944 and until the spring of 1945, with the exception of six head which were pastured by Sodar on his place during the summer of 1944 and sold by him for $ 212.00. He testified that when these six were purchased the cash outlay was about $ 30.00. He also testified that in the spring of 1945 he went to the defendant's farm and asked for the balance of the cattle for the purpose of shipping them to market, but that defendant refused to deliver them and after some negotiation informed him that he, Ossendorf, had sold the cattle. Sodar then brought a replevin suit and went with the sheriff to defendant's place where he obtained all the cattle except four head referred to and identified by the witness as being Black Angus. Sodar admitted, and the defendant testified, that three or four head of black cattle were tendered by the defendant but that he rejected and refused them on the ground that they were not his and that those tendered were much smaller.

The evidence reveals that three of these so-called Black Angus were half Holstein and half Angus and the other, part Jersey and part Angus. In view of the fact that the members of this court have been thoroughly educated by one of the Judges of the court on the high quality and fine breeding of Angus cattle, we must refrain from designating the cattle in question as Angus. We will, therefore, refer to them as black cattle. It is also in evidence that the Jersey cow and its black calf died. The dispute is therefore narrowed to three black cattle. The evidence reveals that in the cattle business the final standing between the prosecuting witness and the defendant, after the replevin writ was executed, was about as follows: The prosecuting witness was in possession of all of the cattle except three. He sold six for which he received $ 212.00 and testified that he did not give Ossendorf any of this money. He claimed that the defendant owed him sums for groceries and money loaned. Defendant, on the...