State v. Parker
| Decision Date | 03 December 1923 |
| Citation | 256 S.W. 1040,301 Mo. 294 |
| Parties | THE STATE v. ED. PARKER, FLOYD PARKER and BOB PARKER, Appellants |
| Court | Missouri Supreme Court |
Appeal from Mississippi Circuit Court; Hon. Frank Kelly Judge.
Affirmed.
Russell & Joslyn for appellants.
(1) The indictment charges that the defendants "at the County of Mississippi and State aforesaid, sixteen sacks of peas of the value of forty dollars of the goods and chattels of one William Pope, then and there being, feloniously did steal take and carry away." At no place in the bill of exceptions does it appear in what county Bill Pope's barn was located. The court must assume that the place from which these peas were taken was in Mississippi County simply because Bill Pope swore that he lived in Mississippi County. There is no proof that this barn was in the same county in which his house was located. This court should not permit a conviction to stand under such proof. (2) The indictment itself discloses that witness Finley was jointly indicted with these defendants, and, before he could become a competent witness for the State, he should have been convicted or acquitted, or the indictment as to him dismissed. State v. Chio Chiagk, 92 Mo. 406. (3) Instruction 4 is bad for two reasons. It fails to explain to the jury what is meant by the words "facts material to the issue" and it fails to tell the jury that in order to the corroboration of the testimony of the accomplice, such corroboration should go so far as to identify the person or the prisoner against whom the accomplice speaks. State v Chio Chiagk, 92 Mo. 417. (4) There is strong testimony in this record that the defendants were elsewhere on the night this offense is alleged to have been committed. Therefore, the court should have instructed the jury on their alibi. Sec. 4025, R. S. 1919; State v. Vinso, 171 Mo. 578; State v. Conway, 241 Mo. 271. In the motion for a new trial the court's attention was specifically called to this error and he was given the opportunity to correct it.
Jesse W. Barrett, Attorney-General, and Robert W. Otto, Assistant Attorney-General, for respondent.
(1) The transcript of the record as filed in this case fails to show that the bill of exceptions was ever filed and made a part of the record. This court is therefore precluded from considering the bill of exceptions. Secs. 4039, 4103, R. S. 1919; State v. George, 221 Mo. 519; State v. Scobee, 255 Mo. 270; State v. Wade, 263 Mo. 262; State v. Latshaw, 209 S.W. 870; State v. Little, 248 S.W. 926; State v. Keyger, 253 S.W. 363. (2) The purported bill of exceptions not being signed by the trial judge there is nothing presented for review except the record proper. Secs. 1495, 4039, R. S. 1919; State v. Bockstruct, 192 S.W. 404; State v. Bowman, 213 S.W. 98; State v. Goodson, 252 S.W. 366. (3) The venue was properly laid. The evidence establishes that the peas were taken from the farm of one William C. Pope which was in Mississippi County, and were sold to one G. W. Finnimore at Bertrand, in Mississippi County. (4) The contention made as to the competency of the testimony of Finley, in that he was jointly indicted with the defendants, loses its force when made here for the first time. This assignment, therefore, is not before this court for review. State v. Glazebrook, 242 S.W. 932. (5) The court did not err in failing to instruct on alibi. Where it does not appear from the record that the defendants offered any instructions aside from those given nor that any request was made for an instruction on alibi, and since no exception was saved to the court's failure to instruct, this matter is not before this court for review. State v. Nelson, 225 Mo. 551, 555; State v. Sykes, 248 Mo. 708, 712; State v. Cook, 207 S.W. 833; State v. Lee, 231 S.W. 621.
On October 18, 1921, the grand jury of Mississippi County, Missouri, returned an indictment against Ed Parker, Floyd Parker, Bob Parker and Eurie Finley charging them with having stolen, in said county, on or about January 15, 1921, sixteen sacks of peas, of the value of forty dollars the property of William Pope. On February 13, 1922, Bob, Ed and Floyd Parker were formally arraigned, and each entered a plea of not guilty. The case was tried before a jury, and the latter, on said February 13, 1922, returned a separate verdict against each of said Parkers, convicting them of grand larceny, and assessed the punishment of each at two years imprisonment in the penitentiary. The above named defendants filed their joint motions for a new trial and in arrest of judgment. Both motions were overruled, and all three of said defendants were sentenced in conformity to said verdict, and judgment entered accordingly. Thereafter all of said appellants in due form appealed to this court.
The evidence on behalf of the State tended to show that one Eurie Finley and Bob Parker were hunting on the farm of Bill Pope, and found stored in a log cabin on said farm some peas; that about the 14th or 15th of December, 1920, Bob Parker came to Finley and told him he had seen Ed and Floyd Parker, and that they would go to said barn and take the peas; that Finley and the three Parkers met that night at the Dogwood School House, drove to said barn and loaded a wagon driven by Bob Parker with the peas from the Bill Pope farm. The peas were not sacked, but were loose in the crib, and were taken out of the latter in a bucket and dumped into the wagon box, by the three appellants and Finley. The next day the peas were taken by Finley and Floyd Parker to Bertrand, in Mississippi County, Missouri, and sold by Floyd Parker to Mr. Fennimore. Floyd Parker received $ 54.97 for the load of peas, and Finley received $ 12.50 for his share of the above proceeds. He was paid his part, by check made to Floyd Parker. After the peas were taken as aforesaid, Floyd Parker approached Finley, and suggested that he should deny having taken the peas. He also asked Finley what his testimony was before the grand jury, Finley having testified before said body. Floyd Parker likewise told Finley that he was foolish for testifying before the grand jury, as they could have gotten a lawyer to beat the case. Soon after Finley was arrested, and while he was passing the house of Bob Parker the latter approached him, and wanted to know what he was going to testify to before the grand jury. When told by Finley that he was going to tell everything he knew about the case, Bob Parker told him if he would deny it they could beat the case.
The evidence on behalf of appellants tends to show that the peas hauled to Bertrand were owned by Floyd Parker and Tom Reed, and that Floyd paid Finley two dollars for helping him take the peas to Bertrand; that Floyd, with Finley, never got any peas from said barn; that Finley had no interest in said peas; that on the night before the peas were taken to Bertrand, Floyd Parker, with Luther Banks, John Foster, Leslie Keith and Ed Parker, was at the home of Floyd Parker's mother; that Ed, Bob and Floyd Parker did not go with Finley to the barn of Pope and take some peas; that Bob made no arrangement with Finley to take peas from the Pope barn; that on the night of December 17, 1920, Bob was at the home of J. S. Baker; that during the fall of 1920, one Bert Humphreys threshed about 160 bushels of peas for Ed Parker, Floyd Parker and Tom Reed; that all the peas threshed for said last named parties were on the farm of Mrs. Parker.
The instruction, rulings of the trial court and such other matters as may be deemed of importance, will be considered later.
I. Counsel for the State, in their brief, insist that there is nothing in the record proper which indicates that any bill of exceptions was ever signed by the trial judge, and filed in this cause, and that, by reason thereof there is nothing before us for review but the record proper.
On May 18, 1922, there was lodged with the clerk of this court a short transcript, without any bill of exceptions attached. On December 30, 1922, there was filed with the clerk of this court a full transcript in said cause, containing a purported bill of exceptions, alleged to have been signed by Frank Kelly, the trial judge, and filed in said court, in this cause, on May 1, 1922. At the conclusion of the above transcript the following appears:
"F. T. Clarkson, Circuit Clerk." etc.
We are of the opinion, that the record before us is in proper form, and that the bill of exceptions was duly signed, filed and made a part of the record in this cause. The foregoing contention of counsel for respondent is accordingly overruled.
II. It is contended by appellants, that the peas in controversy were not stolen in Mississippi County, Missouri, where W. C. Pope the owner thereof, lived. Pope testified that his peas were stolen from a log barn about one-half mile or less from his house. There is no substantial evidence in the record, either proving or tending to show, that said barn was in Mississippi County, Missouri. The facts, however, heretofore set out, as shown by the State, tend to prove that these appellants, with one Finley, an accomplice, stole said peas of the value of $ 40 or more from said barn, and sold and delivered the same to Geo. Fennimore or the Bortrand Mercantile & Grain Company in ...
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