State v. Schrum

• Decision Date: 10 June 1941
• Docket Number: 37456
• Citation: 152 S.W.2d 17,347 Mo. 1060
• Parties: The State v. Ray Schrum, Appellant
• Court: Missouri Supreme Court

152 S.W.2d 17

347 Mo. 1060

The State v. Ray Schrum, Appellant

No. 37456

Supreme Court of Missouri

June 10, 1941

Appeal from Texas Circuit Court; Hon. W. E. Barton, Judge.

Reversed and defendant ordered discharged.

David E. Impey and John P. Moberly for appellant.

(1) A verdict of guilty, based upon evidence that merely raises a suspicion (even if great) of defendant's guilt and building inference on inference, will not be sustained. State v. Pippin, 36 S.W.2d 914; State v Culbertson, 74 S.W.2d 375; State v. Lease, 124 S.W.2d 1084. (2) A conspiracy cannot be established by a mere suspicion; nor does evidence of mere relationship between the parties or association show a conspiracy. 12 C. J. 938; State v. May, 142 Mo. 135; State v. Bell, 316 Mo. 185; State v. Porter, 276 Mo. 387; State v. Thompson, 293 Mo. 116. (3) An instruction without evidence to support it is erroneous and should not be given. State v. Johnson, 111 Mo. 584. Where the evidence fails to show a conspiracy, an instruction as to such conspiracy is neither required nor proper. 30 C. J. 396; State v. King, 203 Mo. 560. On the contrary, where the evidence fails to establish guilty complicity on the part of one of the defendants, the jury should be instructed to render a verdict of not guilty as to such defendant. 12 C. J 645. (4) Evidence of experiments made is inadmissible unless the one making the experiment is shown to be qualified so to do, and unless the experiment is performed under circumstances and conditions essentially the same as in the concrete case. 16 C. J. 563; State v. Bass, 251 Mo 120. And experiments must be based on facts connected with the crime and not on speculative and theoretical hypotheses or theories. Harris v. State, 137 S.W. 373; 16 C. J. 563.

Roy McKittrick, Attorney General, and Max Wasserman, Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance. Sec. 4066, R. S. 1929; State v. Day, 124 S.W.2d 1189; State v. Perkins, 342 Mo. 560, 116 S.W.2d 80; State v. Millering, 111 S.W.2d 121. (2) The verdict in this case is in proper form. State v. Hyatt, 71 S.W.2d 712. (3) There was sufficient evidence to sustain the conviction. State v. Lease, 124 S.W.2d 1086; State v. Wilson, 136 S.W.2d 997; State v. Culbertson, 74 S.W.2d 377; State v. Durbin, 29 S.W.2d 80; State v. English, 308 Mo. 695, 274 S.W. 470. (4) Statements made by prosecuting attorney in opening argument were proper. Grace v. State, 49 Ga.App. 306, 175 S.E. 384; State v. Lindsey, 333 Mo. 139, 62 S.W.2d 422; State v. Bell, 109 Kan. 766, 201 P. 1111; People v. Burke, 313 Ill. 576, 145 N.E. 164; State v. Davis, 80 Mo. 86. (5) Testimony of wife's statement admissible as part of the res gestae. State v. Stallings, 334 Mo. 1, 64 S.W.2d 645. (6) Observer may give opinion evidence as to matters within range of common experience and observation. State v. Schmittzehe, 3 S.W.2d 239. (7) Evidence found near scene of crime tending to incriminate appellant was admissible. Rice v. State, 93 S.W.2d 1150; Bell v. State, 93 S.W.2d 409; 36 C. J., sec. 467, p. 891; Grace v. State, 49 Ga.App. 306, 175 S.E. 384. (8) Witness need not be an expert to testify as to matter within common knowledge of literate persons. State v. Bunch, 333 Mo. 20, 62 S.W.2d 441; Curry v. State, 23 Ala.App. 303, 122 So. 305; Lightner v. State, 195 Ala. 687, 71 So. 469. (9) Assignments of error must state reasons why trial court's rulings were erroneous to preserve anything for review on appeal. State v. Huddleston, 123 S.W. (2) 184; State v. Gazell, 30 Mo. 93.

OPINION

Leedy, J.

Appellant was charged by information in the Circuit Court of Texas County with having stolen, on or about June 2, 1938, in the nighttime, seventeen chickens, the property of Dow Clayton, from the messuage of said Clayton, in violation of Section 4066, R. S. '29 [Sec. 4066 Mo. Stat. Ann., p. 2871.] Upon a trial at the March, 1940, term of said court, he was found guilty as charged, and, from the judgment sentencing him to a term of two years in the penitentiary, in accordance with the verdict of the jury, he prosecutes this appeal.

The first and main question presented is that of the sufficiency of the evidence to support the verdict, the contention being that the proof fails to connect defendant with the larceny. In that behalf the State's brief says, "Respondent concedes that the question of the sufficiency of the evidence is close, but submits that the facts and circumstances are consistent with appellant's guilt and that a case was made out for the jury." The facts are brief, and, insofar as pertinent to this inquiry, may be stated as follows:

The prosecuting witness, Dow Clayton, lived on a sizable farm in Texas County on the west side of U.S. Highway 63. A quarter of a mile south of his residence there connects with, and extends east from said highway, an improved farm-to-market road known as Texas County highway "V." During the night in question, between 3:00 and 5:00 a. m., and before daylight, Clayton was awakened by his wife. He got up and went outdoors, and took a position midway his residence and hen house. He stood there a few minutes and nothing developed. He neither saw nor heard anyone in the chicken house. Nevertheless he "hollered, 'Drop them right where you're at; I have got it on you.'" Whereupon, he "heard a noise that sounded like a runaway team start . . . and they run into a gate" some 40 or 60 feet from the hen house. The witness then went to the gate and there found two burlap sacks containing chickens, which he counted and liberated. Further search disclosed a flashlight and hat on the ground near the gate. Inside the chicken house three more sacks were found. The witness then got in his car and waited to start it until his son heard a car start at or near junction of highways 63 and "V" south of his residence, which car traveled east on county highway "V." The car was not seen by Clayton and his son, Roy, but was merely heard. Dow Clayton gave pursuit. He drove south on 63 to its junction with "V" then turned east on the latter road. After he had driven east a quarter of a mile on "V" and "topped the hill at Frank Jones" he was "on the level for two miles and a half" and there for the first time saw the lights of a car, "so then I kicked the gas down to the floor board . . . I knew I had three miles of highway there to travel on straightaway . . . There was just one turnoff there (by Wurlow's) . . . I overrun that. There was just one turnoff there and when I overrun that I whirled and come right back and when I come back they took a side road on me." He then went to the residence of Frank Jones and got Jones to accompany him "back to where they had left the highway and just as I started to turn in, my lights come on this car and it was there." The car was found to be unoccupied and "stuck" in a mudhole. In that connection he testified as follows: "Q. You didn't recognize the car that went away from your house, did you? A. No, sir. Q. And you didn't keep in sight of that car all the time until you found the car you have described, did you? A. I kept in sight of it until I overrun it when it turned in, it fooled me and I passed it. Q. Well, Mr. Clayton, the truth about the matter is this: you started out to follow a car and you lost sight of it, didn't you? A. Yes, sir. Q. And then later you found a car on the side road? A. Yes, sir."

Other neighbors and the officers were aroused and came to the scene of the stalled car, a Model A 1930 or 1931 Ford coupe. Two burlap sacks had been tied around the wheels "with chicken feathers all over the sacks." The license plates had been removed "right there" and the motor number had "been fresh chiseled off, right fresh." A chicken coop was found in a thicket about twenty feet from the car. When placed in the back end of the coupe it was found to fit so as to permit the lid to close down and nothing would be in sight. An envelope was found in the car on which appeared the name of "Leland Sutton," and in the envelope there was a summons or petition in a divorce suit wherein he was mentioned, presumably as a party. In the back end of the car were numerous tools, namely: A blowtorch, two or three hand saws, an axe, a couple of cans, one containing cylinder oil, and the other "possibly gasoline," a pinch bar or nail puller, chisels, files, a hammer, some wedges and "a lot of feathers in the bottom of the back of the car." Also found in the car were the following articles upon which much emphasis has been placed: A sprayer together with a can containing a preparation known as "flowers of sulphur," and an "agricultural" book relating to livestock, poultry and farming, in the front of which appeared the name "Ray Schrum, West Fork," and also the name "Elmer Schrum." There was testimony to the effect that the preparation above referred to, when sprayed upon chickens, has the effect of making them groggy, and rendering them unable to squawk or squall so that "you could just reach over and pick them up."

While not definitely shown, the implication is clear that defendant lived elsewhere than in Texas County. For aught that appears in the record, he was never seen within that county until after his arrest. There was testimony to the effect that between 4:00 and 5:00 in the afternoon or evening preceding the alleged larceny a car answering the general description of the abandoned Ford coupe was seen parked at the intersection of highways 63 and "V," and in it were two men and a girl or woman. The occupants were not further identified. The witness Frank Jones testified that at about 4 o'clock on the morning in question and shortly before Clavton came to his residence, he was awakened by the passing of a "Model A" car on highway "V" which runs...