State v. Schyhart
| Decision Date | 04 December 1917 |
| Docket Number | No. 20423.,20423. |
| Citation | 199 S.W. 205 |
| Parties | STATE v. SCHYHART et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Stone County; Fred Stewart, Judge.
Chess Schyhart and another were convicted of an offense, and they appeal. Affirmed.
On March 15, 1917, in the circuit court of Stone county, the appellants in this case were found guilty of killing seven head of cattle, the property of one R. O. Gordon, in violation of section 4627, R. S. 1909.
After the jury was sworn to try the cause, the defendants filed a plea in bar of the action on the ground of former jeopardy. The plea alleged that at the previous October term of the court the defendants all were placed on trial for the offense with which they now stood charged, upon a valid information that a jury was sworn and some evidence taken, when it was suggested by counsel for the state that no information had been filed in the circuit court, and over the objection of defendants the jury was discharged and the cause continued. The motion further alleged that there was a waiver by all parties as to informalities in filing an information.
On the hearing of this motion, the defendants offered the evidence of the prosecuting attorney and of Judge Thornberry, employed to assist the state, and of Judge Moore, who was circuit judge at the time, and of the circuit clerk. From this testimony it appears that the jury was sworn and the trial commenced, when it was discovered that no information had been filed. There was some talk about an agreement to waive the informality and allow the record to show that the information had been filed before the jury was sworn and let the prosecuting attorney file one in proper form as of that time. There was also some talk as to whether they would not agree upon an information, supposed to have been filed before a justice of the peace at the preliminary hearing, as the information under which they were proceeding. However, none of the witnesses examined on these questions seemed to have had a definite recollection as to any agreement at the time, and they did not agree as to what was said and done, except that an information was finally filed, and at the instance of the state's attorney the jury was discharged and the cause continued until the next term of court. All of this took place at the March term, 1916, instead of the October term, as alleged in the plea in bar.
The record shows that the court convened for the March term, 1916, on the 13th day of the month, and on March 14th the defendants were arraigned and pleaded not guilty; and afterwards, on the same day, a jury was impaneled and sworn to try the cause, and testimony was introduced, and, the cause not being completed, the trial continued until the next day. Afterwards, on the same day, the prosecuting attorney of Stone county, by leave of the court, filed an information in open court; and afterwards, on the same day, the prosecuting attorney in open court informed the court that no information was filed in said cause. On the 15th day of March the prosecuting attorney of Stone county comes into open court and by leave of the court files information in the case. Afterwards, on the same day, an order is shown discharging the jury and continuing the cause until the next term.
From the oral evidence taken, it is impossible that the first entry of the filing of an information, on the 14th of March, was made in pursuance of the suggestion that the record would show the filing of an information which had not in fact been filed; however, that entry appears by the record to be after the swearing of the jury and the commencement of the trial, nor is it shown that any evidence was taken after that entry was made. The information alleged to have been filed before a justice of the peace for the preliminary hearing does not appear in the record, nor is there any evidence that there was one.
On this state of the record, the appellants claim they were in jeopardy, because a jury was sworn and a trial commenced at that March term, and the action of the court in overruling their motion is assigned as error.
Sherman Little was introduced as a witness for the state, and his competency was objected to by the defense on the ground that he had been discharged from a similar charge as that on which the trial was proceeding, with the understanding made with the prosecuting attorney that he was not to be prosecuted. The court overruled the objection and allowed him to testify, and this ruling is complained of as error.
Little was a son-in-law of George Schyhart, who was indicted with the appellants and acquitted at the trial. It appears that charges had been preferred against Sherman Little for killing the cattle of certain persons named, including R. O. Gordon, whose cattle the defendants are charged with killing. He had been in jail and was released at the time of the trial of this case. The circumstances under which his testimony was given are about as follows: The attorneys for the state, including the prosecuting attorney and special counsel, George Thornberry, desired to have Little's testimony. It seems they got him to come to the prosecuting attorney's office the night before the trial and endeavored to get him to tell what he knew about the case. He refused to talk, saying that he was standing on his constitutional rights, that they had charges against him for the same offense as that with which the defendants were charged. One of the attorneys representing the state then suggested that he go and consult the circuit judge and see what the judge would advise him to do in the premises. He went to the circuit judge, who told him he could not refuse to testify, and, if the prosecuting attorney would promise not to prosecute him on the charges filed against him, it certainly would be safe for him to tell what he knew. He then returned to the office of the prosecuting attorney, and the latter gave him a statement to the effect that all charges against the witness for killing cattle had been dismissed in the circuit court, and that there was no charge of a criminal nature against him in said court; and the prosecuting attorney further certified that he would not hereafter prefer or file any charge against him in that connection. This statement of the prosecuting attorney was signed and handed to the witness, and he then proceeded to tell what he knew about the cattle killing, being enjoined by the attorneys present to tell only the truth. He stated that he did not tell anything but the truth.
The three defendants, George Schyhart, Jesse Schyhart, and Chess Schyhart, were tried together, being charged in the same information with the malicious killing of seven cattle belonging to R. O. Gordon. The jury returned a verdict finding James Schyhart and Chess Schyhart guilty, and finding George Schyhart not guilty.
George Schyhart was 64 years of age, and James was his son, 22 years of age, and Chess is described as George's half-brother. He was a youth 17 years of age. Whether he lived as a member of George's family, or was merely visiting George Schyhart that summer, does not clearly appear from the evidence.
R. O. Gordon, whose cattle defendants were charged with having killed, lived in the south part of Stone county south of White river about two miles from where defendants lived. He owned about 200 head of cattle which ran at large on the range. It was an "open" range; the law restraining cattle from running at large had not been put in force in that part of the county. Many other cattle ran at large on the same range. The country is described as broken and sparsely settled and not fit for cultivation, and principally owned by nonresidents. Whether George Schyhart owned the land he was on does not appear, but he cultivated a field of corn, and his son-in-law Sherman Little also cultivated a field of corn near his. It appears that James and Chess worked in these fields during the summer of 1915, when the crime was alleged to have been committed. Some springs and watering places were located in the neighborhood of the Schyhart place, and the Schyhart cornfields apparently were along the course which these cattle went in going to water.
George Schyhart's cornfield was poorly fenced. It was inclosed, as described by witnesses, partly by rail fence and partly by brush fence, through which cattle could go, and a horse could be ridden without much trouble.
In the year 1914, Gordon's cattle gave Schyhart some annoyance by getting into his field. Gordon at that time helped Schyhart fix up his fence.
Early in the summer of 1915, Gordon found seven of his cattle killed — six steers and one crumply-horn cow, the description of which cow appears important in the evidence — some of them in the immediate neighborhood of Schyhart's place and others at some distance. An examination showed that they all were shot; some with a shotgun, some with a 32 rifle, and some, apparently, with a 22 rifle. Some were shot in the intestines so that they would live for several days and travel a considerable distance before succumbing to the wound. Several witnesses swore to the finding of the dead and wounded cattle, and as to the location where they were found. Many were shot that did not die.
One Mart McCullough testified for the state that, in the summer previous to the time the crimes were alleged to have been committed, he was at Schyhart's cornfield, saw some cattle in the field, four in number, and helped George Schyhart drive them out where the brush fence was insufficient to protect the field, and at that time George Schyhart told the witnesses to tell Gordon, "I aim to kill these cattle if they get into my field any more."
In the summer of 1915, notices were put up in the neighborhood by George Schyhart, which read: On the skulls of some of the cattle that had been shot was...
To continue reading
Request your trial
-
State v. Malone
...The term at which the indictment is found or the information filed is not counted. Robinson v. State, 12 Mo. 390, 392; State v. Schyhart, Mo., 199 S.W. 205, 210; State v. Wigger, 196 Mo. 90, 94, 93 S.W. 390, 391. It follows, whether or not appellant, as he claims, was in prison under a 'ben......
-
The State v. Williams
...Walker. Donnelly v. United States, 228 U.S. 243; State v. Barrington, 198 Mo. 97; Underhill's Crim. Evidence, sec. 238, p. 340; State v. Schyhart, 199 S.W. 205; State v. Duncan, 116 Mo. 288; State v. Taylor, 136 Mo. 73; State v. Evans, 55 Mo. 460; 3 Wigmore on Evidence, secs. 1476, 1477; St......
-
State v. Miller
... ... 363] counsel. There can be no question, ... under the foregoing facts that Blake was a competent witness ... Sec. 4080; State v. White (Mo. Div. 2), 126 S.W.2d ... 234, 235(2); State v. Morefield, 342 Mo. 1059, ... 1065(5), 119 S.W.2d 315, 317(5, 6); State v. Schyhart ... (Mo. Div. 2), 199 S.W. 205, 210(7) ... But ... appellant here contends first that the testimony of witness ... Blake was incompetent because it was coerced by threats of ... physical violence made by the troopers. This is directly ... contrary to the testimony of the ... ...
-
State v. Gillman
... ... This, the evidence failed to do. State v. Bass, 251 ... Mo. 107; State v. Miller, 234 Mo. 558; State v ... Crabtree, 174 Mo. 650; State v. Dickson, 78 Mo ... 447; State v. Adkins, 222 S.W. 435; State v ... Ruckman, 253 Mo. 500; State v. Schyhart, 199 ... S.W. 211; State v. Hollis, 284 Mo. 627. (i) The ... evidence was insufficient to justify the submission of the ... case to the jury. The proven circumstances are insufficient ... without basing an inference on an inference, which is not ... permissible. United States v. Ross, 92 U.S ... ...