State v. Quinn

• Decision Date: 03 July 1940
• Docket Number: No. 37017.,37017.
• Citation: State v. Quinn, 142 S.W.2d 79 (Mo. 1940)
• Parties: STATE v. QUINN.
• Court: Missouri Supreme Court

142 S.W.2d 79

STATE v. QUINN.

No. 37017.

Supreme Court of Missouri, Division No. 2.

July 3, 1940.

Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.

Paul D. Quinn was convicted of grand larceny, and he appeals.

Affirmed.

W. L. Proffer, of Kennett, for appellant.

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

TIPTON, Judge.

This is the second appeal; the first is reported in 344 Mo. 1072, 130 S.W.2d 511. Appellant was convicted the second time of grand larceny in the circuit court of Butler County, Missouri, and the jury assessed his punishment at a term of two years in the penitentiary.

At the time of the alleged offense, appellant, a white man, lived in Poplar Bluff, Missouri. The evidence on behalf of the State was to the effect that appellant arranged with three negro boys, Willie Green, George Conley and Claude Turner, to go to a farm near Neelyville in Butler County for the purpose of stealing cattle; that he arranged with Virgil Thompson who owned a truck to transport the cattle after they had been stolen; that the appellant, in company with Green, Thompson and Conley, left Poplar Bluff in a car late in the evening of April 12, 1937, and drove to a place near a farm owned by J. S. Hutchison, three-quarters of a mile north of Neelyville, where there was a herd of twenty-five or thirty cattle in a lot; that the negroes opened the gate and drove the cattle to a schoolhouse a short distance from the Hutchison farm; that appellant and Thompson returned to Poplar Bluff for the purpose of getting trucks; that they returned with the trucks but succeeded in loading only a white-faced cow and calf, which are the subject of this offense; that Thompson took the cow and calf into Carter County and sold them to one Gargac who lived at Grandin, the home of Thompson; and that shortly thereafter appellant went to Grandin where he and Thompson divided the proceeds arising from the sale of the cow and calf. The appellant's defense was an alibi. Other pertinent facts will be stated during the course of this opinion.

Appellant contends that the demurrer to the evidence should have been sustained because the amended information alleged that the stolen cattle belonged to Joe Gardner and that there was a total failure of proof that Gardner owned the cattle. The evidence on this point is as follows: J. S. Hutchison had the cattle and Gardner was trying to buy them. On April 12, 1937, Hutchison phoned Gardner that he had accepted his offer for the cattle, however, Gardner told Hutchison that he could not get them that day because he was going to Farmington but that he would get them as soon as he could. The cattle were stolen the next day, and at that time Gardner had not paid for them. Later he did take all the cattle except the two that were stolen from the farm and paid for them. Hutchison testified that he sold the cattle to Gardner on April 12, 1937; Gardner testified that "I bought the cattle on the 12th day of April, 1937, at 8 o'clock in the morning." We think the evidence is sufficient to show that Joe Gardner was the owner of the stolen cattle.

Moreover, "Sec. 3562, R.S. 1929, Mo.St.Ann. § 3562, p. 3158, provides that whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in (among other things) the name or description of any matter or thing therein named or described `or in the ownership of any property named or described therein' such variance shall not be deemed grounds for acquittal unless the trial court shall find that such variance `is material to the merits of the case and prejudicial to the defense of the defendant.'" State v. Nicoletti, 344 Mo. 86, 125 S.W.2d 33, loc.cit. 36. The trial court made no such finding in this case. We therefore hold that the trial court properly ruled the demurrer.

Appellant next contends that Virgil Thompson was an incompetent witness for the State because he was "an accomplice and the admitted perpetrator of the theft of the cattle, but had never been arrested or prosecuted." However, Thompson had been convicted in the circuit court of Carter County on another charge of larceny and at the time of this trial was incarcerated in the state penitentiary. On cross-examination, he testified as follows:

"Q. You just volunteered to come down here and testify? A. The only thing that was said, they was going to send me out on the Farm and he already had written statements there where there'd been somebody made a confession down here on this trial, and he just asked me if that was the facts.

"Q. Who had written statements? A. Mr. Massey and the Sheriff.

"Q. Now, then, did they promise to make your sentence lighter on you and get a parole for you? A. No, they promised to help get me out on the Farm and told me they thought it would be a better place for me as I had some time to do."

Upon this state of the record, we are simply confronted with the proposition as to whether or not this accomplice was a competent witness. There was no deal made for him to testify to anything but the truth. If he would testify for the State, the officer promised to help get him placed out on Algoa Farm.

One of the cases relied upon by appellant is State v. Hayes, Mo.Sup., 247 S.W. 165. That case is not an authority for the appellant on this point but, on the contrary, sustains the action of the trial court. At page 167 of 247 S.W., we said:

"Under section 4035, R.S. 1919 [Mo.St. Ann. § 3691, p. 3240], one who is jointly charged with a crime may be discharged by order of the court and then become a witness against his accomplice on behalf of the state. Such person is not a competent witness while the joint charge is pending. State v. Reppley, 278 Mo. 333, 213 S. W. 477. But an accomplice is a competent witness when separately indicted. State v. Myers, 198 Mo. 225, 94 S.W. 242. In this case, however, not only was there a separate charge against witness Thomas, but such charge was made under section 3688, R.S. 1919 [Mo.St.Ann. § 4447, p. 3055] as an accessory after the fact, and in this relationship he was not an accomplice. State v. Umble, 115 Mo. 452, 22 S.W. 378. Not being jointly charged, Thomas was a competent witness against appellant.

"It is to be noted that the question only called for information as to whether there was an agreement that witness would not be further prosecuted if he `turned state's evidence.' This agreement may have been made, and yet not disqualify him as a witness, as it was not sought to elicit information that he had agreed to testify in any particular way. State v. Schyhart (Mo.Sup.) 199 S.W. 205. As the question called for a conclusion of law, the objection was properly sustained."

Another case relied upon by appellant is State v. Shelton, 223 Mo. 118, 122 S.W. 732. This case also sustains the action of the trial court.

We hold that this promise made by the officer might affect his credibility, but not his competency as a witness.

Appellant also contends that the court erred in refusing his application for a continuance. The application stated that Bessie Waggoner was a material witness for appellant, that she lived within the jurisdiction of the court, and that she was duly subpoenaed but was unable to attend the trial on account of illness. She had testified at the previous trial and her testimony was preserved...