State v. Perkins

• Decision Date: 03 May 1938
• Docket Number: 35314
• Parties: The State v. Roy Perkins, Appellant
• Court: Missouri Supreme Court

116 S.W.2d 80

342 Mo. 560

The State v. Roy Perkins, Appellant

No. 35314

Supreme Court of Missouri

May 3, 1938

Appeal from Linn Circuit Court; Hon. Paul VanOsdol, Judge.

Affirmed.

G Derk Green for appellant.

Roy McKittrick, Attorney General, and Aubrey R. Hammett Jr., Assistant Attorney General, for respondent.

OPINION

Ellison J.

The appellant was charged by information with stealing in the nighttime 165 white rock spring chickens of the value of $ 50 belonging to Irvan Vasser from the premises upon which the latter's dwelling house was situate. On change of venue from Chariton County the cause was tried to a jury in Linn County and the accused was convicted with punishment fixed at two years' imprisonment in the penitentiary. He has filed no brief in this court. His motion for new trial in the circuit court contained seventeen assignments of error. We shall consider such of them as come within the requirements of the new trial statute.

I. Five of the assignments are directed to the proposition that the evidence was insufficient to support the verdict. Another complains of the overruling of appellant's objection to the introduction of any evidence, made at the beginning of the trial on the ground that the information was indefinite and duplicitous in that it charged two different and separate offenses. We discuss these assignments together because it is necessary to determine what the charge was before deciding whether there was sufficient evidence to support it.

As stated, the information charged that the appellant stole in the nighttime chickens worth $ 50 belonging to Irvan Vasser from the premises whereon his dwelling house was situate. This was sufficient to bring the case within either of two statutes: Section 4064, Revised Statutes 1929 (Mo. Stat. Ann., p. 2865), making it grand larceny to steal the personal property of another of the value of $ 30 or more; and Section 4066, Revised Statutes 1929 (Mo. Stat. Ann., p. 2871), making it grand larceny to steal in the nighttime domestic fowls of any value from the premises upon which the dwelling house of another is situate. The record does not show that the court ruled upon appellant's objection to the introduction of any evidence made at the beginning of the trial, but it does appear that at the close of the State's case in chief appellant moved the court to require the State to elect upon which charge in the information it would proceed. That motion was sustained and the prosecutor announced: "the State elects to proceed on the charge of grand larceny of domestic fowls." He did not say larceny of domestic fowls in the nighttime. We should, therefore, have understood the announcement to mean the charge would rest on the general grand larceny statute (Sec. 4064, supra) whereunder the State made a stronger showing in our opinion. But we find that at the close of the case the court did not instruct on grand larceny under Section 4064, but only on grand larceny of domestic fowls in the nighttime under Section 4066, and on petit larceny. So we shall review the evidence with reference to its probative value on that theory.

To sustain a conviction under Section 4066, supra, it must appear that the larceny was committed "in the nighttime." We do not find that expression has been defined by the statutes or decisions of this State. But at common law in proof of the crime of burglary it was essential to show the breaking or entering, or both, were committed in the nighttime; and this was held to mean "that period between sunset and sunrise during which there is not daylight enough by which to discern a man's face." [9 C. J., sec. 28, p. 1020; 4 R. C. L., sec. 13, p. 425.] Other definitions in varying circumstances have been made by statute or judicial construction. The rule is often followed that nighttime begins thirty minutes after sunset and ends thirty minutes before sunrise. Words and Phrases, "Night -- Nighttime," First, Second, Third and Fourth Series. And it is a matter of common knowledge that ordinarily one can see and recognize objects and persons about that long after sunset or before sunrise. In the absence of a different statutory definition we adopt and apply the common-law definition here.

There is ample evidence that the appellant with two other men committed the larceny. The prosecuting witness, Vasser, owned some 164 white rock chickens of an average weight of from 1-1/2 to 2 pounds, which he said were worth about $ 50. He kept them in a brooder house on the premises where his dwelling house was located. The former was about 135 yards distant from the latter, but within view. The chickens went to roost the night of July 9, 1935, at the usual time. The next morning all were gone. There were footprints of several persons leading past places where the wire fence had been cut to the public road. At the side of the road automobile tire prints showed where two cars had stood and white chicken feathers were scattered around. One car had two new tires, one smooth tire, and one about half worn, which combination made distinctive markings that showed clearly in the parts of the road outside the beaten track after the heavy dew of the night before. These tracks were traced to the home of John Russell Moritz and also doubled toward appellant's home in the same neighborhood. Late the same day when appellant was arrested at his home the tires on his car were found to correspond with the tire tracks aforesaid.

About five o'clock in the evening 131 of the chickens weighing 250 pounds, an average of 1.9 pounds each, were found at the poultry house of Emmet Vanderbeck in Huntsville, Randolph County, some twenty-two miles from appellant's home. They had been brought there that morning about six-thirty or seven o'clock by three strangers in two cars, a roadster and a coupe. Some of the chickens were tied up and some in sacks. Several of them were dead from smothering. The three men who brought them were in a hurry, demanded cash, and were paid $ 27 and some cents at 11 cents per pound (which would be $ 27.50). The chickens were positively identified by Vasser and his wife. In size, weight and color they met the description of his. They had grease spots on them such as his chickens had got from ranging in weeds where farm machinery had been, and one "runt" chicken was easily recognizable. When they were taken back to the Vasser home they appeared to be familiar with the premises, went to drink at the usual place, readily entered the brooder house to roost, and were unafraid of the house dog. The poultry dealer, Vanderbeck, and his helper positively identified appellant and two other men as the persons who had sold the chickens to him. And two State's witnesses, Gray Wright and John Fitzgerald, testified that about five o'clock the morning of July 10 they saw appellant and John Russell Moritz in one car and appellant's son in another, both Model A Fords with turtle backs, driving east along the road leading to Vasser's home, and about three miles distant therefrom. This evidence was sufficient to convict the appellant of grand larceny.

But the important question as to whether the chickens were stolen "in the nighttime" still remains to be determined. The prosecuting witness, Vasser, testified they went into the brooder house to roost that evening and he shut the door. He did his chores, which took an hour, finishing about sundown. Then he ate supper. The brooder house was in sight of his dwelling and nothing occurred to attract his attention that night. It is fair to say from these circumstances that the chickens were not stolen before nighttime on July 9.

He said he discovered the chickens were gone about five-thirty the next morning when it was "coming daylight." It was not light when he got up. He made a fire in the cook stove and fed and harnessed the horse. It took eight or ten minutes to do this latter. While he was at the barn it was daybreak and he could see. The barn was about fifty yards from the brooder house. Perhaps fifteen minutes later he missed the chickens. Nothing occurred after he got up indicating the chickens were being stolen. Further on in his testimony he said about fifteen or twenty minutes elapsed while he was harnessing his horse, doing the chores, discovering the chickens were missing, going back to the house and reporting to his wife, and then returning to the chicken house and following the footprints out to the road. His wife called her father and the father got Mr. Widmer, deputy sheriff, to come out to the place. That took fifteen or twenty minutes. Mr. Widmer testified that Vasser's father-in-law came for him about six-fifteen A. M. On redirect examination Vasser again stated it was still dark when he got up, and was turning light when he was out at the barn doing his chores.

We take judicial notice that the sun rose that morning at 4:31 A. M. If daylight began 30 minutes earlier it would be at 4 o'clock. As already stated the State's witnesses Gray Wright and John Fitzgerald said they saw the appellant, his son and Moritz pass along the road toward Vasser's house at five A. M. It was then broad daylight. Wright was at his barn 100 feet from the road. Figuring Mr. Vasser's estimates of elapsed time it seems he must have arisen about five o'clock. All this indicates the chickens were stolen after daylight. But he testified twice that it was not light but dark, when he got up. This is better evidence of the fact than his estimates of time. So we have concluded that his testimony furnishes substantial evidence the chickens were stolen in the nighttime. We hold, therefore, that the State made a prima facie showing on this issue, and consequently on the whole case, though the question is close.

The appellant's defense was an alibi....