State v. Sarten

• Decision Date: 13 February 1961
• Docket Number: No. 1,No. 48177,48177,1
• Citation: 344 S.W.2d 1
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James A. SARTEN, Defendant-Appellant
• Court: Missouri Supreme Court

Page 1

344 S.W.2d 1

STATE of Missouri, Plaintiff-Respondent, v. James A. SARTEN, Defendant-Appellant.

No. 48177.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1961.

Motion for Rehearing or to Transfer to Court en Banc Denied

March 13, 1961.

Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, O. J. Taylor, Springfield, for appellant.

John M. Dalton, Atty. Gen., George E. Schaaf, Sp. Asst. Atty. Gen., for respondent.

HOUSER, Commissioner.

A Laclede County jury found James A. Sarten guilty of stealing 26 head of cattle and fixed his punishment at imprisonment in the county jail for 60 days and a fine of $1,000. Defendant has appealed from the judgment of conviction, seeking an outright reversal of the judgment on the ground that the evidence against defendant was not sufficiently substantial to warrant submission of the case to the jury, and in the alternative a reversal and remand for a new trial for the following alleged procedural errors: Improper and prejudicial cross-examination of the defendant and of the defense witness Boelio; abuse of discretion in permitting certain witnesses to testify in rebuttal, and error in the giving of an alibi instruction.

At the time the cattle were stolen, July 20, 1958, defendant was a second lieutenant in the United States Army, the executive officer second in command of the replacement company at Fort Leonard Wood, Missouri.

The State's theory is that defendant stole the cattle through an innocent agent; that defendant, acting under an assumed name and representing that he owned cattle which in truth and fact belonged to Jewell and Claude Groves, employed a commercial truck operator named Powers to go to the pasture where the cattle were located, load and haul them to market, sell them and cause the proceeds to be deposited in a St. Louis bank in the name assumed by defendant, thereby intending to convert the cattle to his own use and deprive the owners of their use. The State's evidence, briefly stated in chronological order, tended to show the following: After soliciting but failing to secure the help of two enlisted men in his company to 'help load some cattle' defendant, whose automobile was not in working condition, asked a third man in his company, one Pvt. Lalumondiere, who owned an automobile, to drive him to Richland, Missouri on business. Lalumondiere agreed to do so and on July 17, 1958, drove defendant to Richland, where defendant visited at the home of the trucker Powers. Defendant introduced himself as 'Mr. Anderson,' represented that his name was Edward P. Anderson, stated that he had cattle to ship to East St. Louis stockyards, and made the arrangements above described, including the deposit in the bank to the credit of Edward P. Anderson of the net proceeds of the sale of the cattle.

The defense consisted of a denial and an alibi. Defendant denied that he had any such conversations, dealings or contacts with the enlisted men Deroshia, Moseley and Lalumondiere, or Powers, denied that he arranged for or had any connection with the stealing, and presented testimony accounting for his presence elsewhere at all times and places mentioned in the State's evidence.

Appellant's first point is that the testimony of the State's witnesses is not substantial; that the testimony of Sgt. Moseley is contrary to common sense and the common experience of mankind, false and completely impeached as 'pure, unadulterated perjury'; that the testimony of the Lalumondieres is inconceivable, incredible, reflects inconsistencies, contradictions and proved perjuries as a result of which it has no weight, and was fully impeached; that the testimony of Lalumondiere is deliberately, wilfully, and maliciously false, and that the testimony of Powers is inconsistent with previous statements he made out of court, tailored to fit facts later ascertained by him, and is impeached and contradicted by obvious physical facts and unimpeached scientific facts. Citing State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, loc. cit. 51; State v. Huff, 161 Mo. 459, 61 S.W. 900, loc. cit. 908; State v. Prendible, 165 Mo. 329, 65 S.W. 559, loc. cit. 566; State v. Francis, 199 Mo. 671, 98 S.W. 11, and State v. Liston, 315 Mo. 1305, 292 S.W. 45, appellant contends that the basic testimony upon which the State relies is so conclusively impeached that it is no testimony at all; that this Court should not permit a conviction based upon conclusively impeached testimony to stand, and should reverse the conviction and discharge defendant.

Appellant, conceding that the Supreme Court will not weigh the evidence or substitute its judgment for that of the jury, asks us to review the evidence to determine whether there was substantial evidence of the defendant's guilt sufficient to sustain the verdict of conviction. In so determining, this court passes upon the credibility of testimony only insofar as is necessary to determine whether the evidence is sufficient to permit reasonable minds to find and believe defendant guilty beyond a reasonable doubt, reserving the power to grant relief only when the denial of relief would shock the sense of justice. State v. Nash, Mo.Sup., 272 S.W.2d 179, loc. cit. 183.

State's witness Louis Deroshia, a private in defendant's company, testified that about June 20, 1958 defendant asked him if he wanted to help him with the loading of 35 head of cattle located within 35 miles of the Fort, stating that he had the transportation 'lined up.' Deroshia declined to help defendant.

State's witness Arthur Moseley, a sergeant in defendant's company, testified that on July 16 or 17, 1958 he left the post after signing the sign-out roster, and went to Tic Toc Tavern, a public house nearby. While he was there with Sgt. Schmidt, a friend, he encountered defendant, with whom he had become acquainted about July 1. Defendant introduced himself to Sgt. Schmidt as George Anderson, and produced a forged and false indentification card, which he exhibited to Moseley in the presence of Schmidt. Moseley looked at and examined the ID card, saw that it contained a picture of defendant, a serial number, the name 'George Anderson,' and an authorizing signature. Defendant told both men that he went by the name of George Anderson when outside the post. Defendant then asked Moseley in the presence of Schmidt if he would 'like to make a hundred dollars; that he needed a couple of good men to help him load some cattle,' about 50 miles from the camp; that he was supposed to get some trucks to move them, and that it would 'have to be a weekend.' Moseley testified that he declined, and later that night drove defendant back to the post.

State's witness George Lalumondiere, a private in defendant's company, testified that on the day before July 17, 1958 defendant, whom he had known for two weeks but with whom he had never conversed, asked Lalumondiere to drive him in Lalumondiere's automobile to Richland, where he had some business to take care of, stating that his own car was not in operating condition and that he would pay for the gasoline. Lalumondiere agreed and on July 17 he drove defendant to Richland, accompanied by Mrs. Lalumondiere. They picked up defendant at the Fort at 5 p. m. Defendant suggested that they go to the main PX and have a coke, which they did. They had another coke, at defendant's suggestion, when they reached the town of St. Roberts. The trip was made in Lalumondiere's 1957 Ford which Lalumondiere described at the trial as a two-tone gray, dark on the bottom, light-colored in the middle. They arrived in Richland at 6:30 p. m. and went to a house in the driveway of which there was a truck bearing the name 'Powers' on its side. The Lalumondieres remained seated in the car. Defendant entered the house through the front door, remained inside about 15 minutes, and left by the front door, saying that his business was taken care of and that he was ready to return to the Fort. Mrs. Lalumondiere corroborated her husband's testimony. Both Lalumondiere and his wife positively identified defendant as the person whom they transported to Powers' home at Richland.

State's witness Raymond Powers testified that his wife had taken a phone call relating to the shipment of some cattle, and that on July 17, 1958 at about 6 or 6:30 p. m. a man whom he positively identified at the trial as the defendant came to his home in Richland in a 1955, '56 or '57 Ford, introducing himself as 'Mr. Anderson.' He said he paid no attention to the color of the Ford; that it was a two-tone paint job. Powers described the person who came to his home as a young fellow about five feet seven to eight inches tall, 'lightcomplected,' light hair, weighing about 160-165 pounds, dressed in light clothing. This description corresponds with the height, weight, complexion and color of hair of defendant. Powers sat within two feet of the man for 25-30 minutes during which arrangements were made to pick up, load, transport and sell the cattle, and deposit the funds in the St. Louis bank, as heretofore described. 'Anderson' indicated that he had cattle on a 160-acre tract three miles east of Nebo, which he wanted to sell. He told Powers how to get to the pasture, and wanted him to load and transport the cattle to East St. Louis; that if 'Anderson' was not there when they arrived with the trucks to go ahead and load the cattle, sell them at an East St. Louis commission house and deposit the proceeds at Boatmen's National Bank in St. Louis to the credit of Edward P. Anderson. He said this man took a pencil and printed the following on a piece of paper:

'Pine Creek Grocery

100 yds

Ed Anderson

Deposit to

Edward P. Anderson

Boatmans Nat Bank'

and that on Sunday morning, July 20, 1958, Powers went past Pine Creek Grocery to the designated pasture, loaded the cattle in two trucks with the help of his son and one Carl Johnson, and sent them on to East St. Louis. The theft was discovered that day, and the trucks were intercepted...