State v. Plaster

• Decision Date: 01 December 1931
• Docket Number: No. 31447.,31447.
• Citation: 43 S.W.2d 1042
• Parties: STATE v. PLASTER.
• Court: Missouri Supreme Court

43 S.W.2d 1042

STATE v. PLASTER.

No. 31447.

Supreme Court of Missouri, Division No. 2.

December 1, 1931.

Appeal from Circuit Court, Douglas County; Robert L. Gideon, Judge.

Floyd Plaster was convicted of the theft of chickens, and he appeals.

Affirmed.

Stratton Shartel, Atty. Gen., and Denton Dunn, Asst. Atty. Gen., for the State.

FITZSIMMONS, C.

Defendant was charged in the circuit court of Douglas county with the theft of four chickens in the nighttime from the messuage of Andrew Love. Upon trial, defendant was found guilty, and his punishment was assessed at two years in the state penitentiary. His motion for a new trial having been overruled and sentence having been imposed, defendant took and perfected his appeal. Defendant has not filed a brief in this court, but he grounded his motion for a new trial upon the insufficiency of the evidence.

On behalf of the state, Andrew Love testified that he and his wife Jane lived on a place on White's creek in Douglas county. Love and his wife had fifty-four (54) "barred rock" hens, and these they kept in his chicken house, located 35 or 40 feet from his dwelling, "the way you have to go around, not so far straight through." They counted the chickens a few days before the theft charged. On the night of May 17, 1929, all the chickens were in the henhouse, the door was set in place, and the button was turned on it. The next morning "after day light, a short time," he observed that the door of the henhouse had been taken down and set aside. Upon a count, there were four or five chickens short. On Sunday morning, May 19, he found and identified four missing chickens in the possession of Pettijohn, a merchant in the town of Sweden, and on May 20 he received back these chickens. When Mr. Love went to the premises of Mr. Pettijohn in Sweden on Sunday morning, he found his chickens with others in the barn. There were no other Plymouth Rocks there. One of the missing chickens had a naked spot on her back, and, before the theft, "she was clucking and was fixing to go setting. She would set on the nest all day and go off on to the roost at night." When Mr. Love went into Mr. Pettijohn's barn, two days after the loss of the chickens, the hen with the naked spot on her back was there, and still was in the clucking and sitting mood. The other three Plymouth Rocks were younger ones. When Mr. Love received back the missing chickens in his own premises on Monday morning, he turned them loose, a little away from the others. But they went down and fed with the other chickens, and at nightfall they went back to roost. And the old hen returned to the nest where she had been sitting before she had been taken away.

Mrs. Jane Love gave the same testimony as her husband about the number of their chickens, the fastening of the door of the hen house, in the evening of May 17, "when the sun was going behind the timber," finding the door set aside the next morning, and missing four chickens on count. She also testified to the return of the four Plymouth Rocks to the flock. If these chickens had been strangers to the others, they would have "fit," but they did not fight. Will Pettijohn, the merchant at the town of Sweden, his son, Raymond Pettijohn, and his granddaughter, Mabel Stout, identified the defendant as the person who brought to Mr. Pettijohn's store, "about sunup," between 6 and 7 o'clock on the morning of May 18, 1929, the four chickens which Mr. Love identified the next day as his. Will Pettijohn bought the chickens from defendant for $4.10. Defendant took a can of pork and beans, some crackers and a knife, worth together 40 cents, and said that he would take cash for the balance of the purchase price. Pettijohn said that he would have to pay the balance, $3.70, by check, and he inquired of defendant to whom the check should be made payable. Defendant requested Pettijohn to make the check payable to Roy Smith or Burney Miller, adding that he was stopping at Burney Miller's. Pettijohn made out a check for $3.70 payable to the order of Burney Miller, and gave the check to defendant. The check which was given on May 18, 1929, had not been cleared through the bank, at the time of the trial, on April 14, 1930. Defendant produced nine witnesses who located him at different places in Douglas and Wright counties at successive hours on May 17 and 18. By their testimony he was traveling about, at some distance from Andrew Love's place on White's creek. But Jim Matney, one of defendant's witnesses living about four miles from Andrew Love, testified that defendant...