State v. Scott
| Citation | 76 S.W. 950,177 Mo. 665 |
| Parties | THE STATE v. SCOTT, Appellant |
| Decision Date | 17 November 1903 |
| Court | United States State Supreme Court of Missouri |
Appeal from Holt Circuit Court. -- Hon. J. W. Alexander, Special Judge.
Reversed and remanded.
J. W Stokes, E. J. Kellogg and Frank Petree for appellant.
If the theory of the State is sustained, the cattle must have been tied in the wagon behind the seat, defendant and his companion sitting on the seat. They must have driven within thirty feet of witness King. The team must have turned suddenly to the right and turned the hack over, end for end. The team running away made a circle of not more than thirty feet and came out almost where they went in, defendant coming right out with them. Yet defendant during this time must have got out of the seat over to where the cattle were tied, cut the halter off the cow and the rope off the calf, got them both out of the hack over the seat, and then come out with the team. Unless this theory is accepted there is absolutely no evidence of any larceny. Defendant contends that the State's theory of this case involves a physical impossibility and that there is no evidence to justify a finding that any cattle were stolen. The judgment of the trial court will be reversed when there is an entire failure of evidence to show the guilt of the defendant as charged in the indictment. State v. Mahan, 138 Mo. 112. If the conviction is without substantial evidence to support it, the judgment will be reversed. State v. Marshall, 47 Mo 378; State v. Kennedy, 16 Mo.App. 287; State v Fuchs, 17 Mo.App. 457; State v. Russell, 17 Mo.App. 16; State v. Sellner, 17 Mo.App. 39; State v. Bruner, 17 Mo.App. 274.
Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, and Jerry M. Jeffries for the State.
A crime can be proved by circumstantial evidence. In this case, it can not be said there is no evidence on which to base the verdict. This being a fact, and defendant's motion for a new trial being overruled, this court will not interfere. The question on the weight of the evidence is one entirely with the jury, and unless it clearly appears that the trial court abused its discretion, this court will not interfere. State v. Rose, 142 Mo. 418.
Defendant was indicted by the grand jury of Holt county, at the August term, 1899, of the circuit court of said county. The indictment charged the defendant and one Charley Wickiser jointly with grand larceny. The charge of larceny consisted in the stealing of two head of cattle, alleged to be the property of Stephen and William Cunningham.
There was a severance granted and at the August term, 1902, this defendant was put upon his trial, which resulted in his conviction, and punishment assessed at two years in the penitentiary. Timely motions for new trial and in arrest of judgment were filed and overruled, and defendant prosecuted his appeal to this court.
The cattle charged to have been stolen were in a large pasture known as the Cunningham pasture, and counsel for appellant very aptly presents the position of the State as follows: "The State's theory of this case is that the defendant went in the Cunningham pasture, which contained about seven hundred acres of timbered land, and there caught a cow that would weigh about seven hundred pounds, and a yearling calf that would weigh from three hundred and fifty to four hundred pounds, and put them into an ordinary hack, alive, with a halter and a rope upon them, and were driving out of the pasture with the cattle in the hack, when the hack turned over and the cattle were cut loose and gotten out of the hack by the defendants."
It is insisted by appellant that there was not sufficient evidence to support his conviction. This is the principal contention, and in view of the conclusion we have reached upon that proposition, it is not necessary or important that we dispose of other minor questions involved in this cause.
The salient facts upon which the State must rely to support this verdict are substantially as follows:
As before mentioned, the larceny charged, if committed at all, was in the Cunningham pasture. The evidence discloses that the defendants drove into the pasture between three and four o'clock p. m., and that George King, the principal witness upon the part of the State, went down into the pasture and saw the defendants and had a conversation with them in which they told him they were hunting for squirrels. His evidence further shows that he stationed himself with others in the road leading out from said pasture to watch for the purpose of finding whether or not defendants took any cattle out of the pasture. He testifies that it was between one hundred and fifty and two hundred yards from where he was standing to where he first saw defendants coming out of the pasture; that at that distance he could see plainly enough to distinguish one man from the other. That he watched them during the time they were driving, in a walk, that distance and that he saw nothing in the hack but the two men. He says that they drove up within about thirty feet of him when the team wheeled to the right and the wagon was turned over and the team ran away making a circle of not more than thirty or thirty-five feet, and came right back to the road almost where they left it. All the witnesses present testify that they saw no cattle.
Some days after this transaction, a cow was found in the pasture with a slight cut upon her jaw, and a calf with a piece of rope around its neck. There was also introduced in evidence a halter which is claimed to have been found the next morning, near where the hack turned over, and which it is said appeared to have been cut with a knife.
It further appears that when the horses became frightened, in turning they ran some ten or fifteen feet, into the standing growing corn. Witness King (and no one on the part of the State details what occurred there differently or more strongly for the prosecution), says:
With all this careful watching and attention given this runaway team, he saw no cattle in or near the hack or escaping from it. He further states that defendant called to him to stop the horses and afterwards asked him why he had frightened his team. A paper of salt and some nails were found near where the hack turned over.
Cunningham testifies that, with a light from some matches, he looked in the hack and saw some manure. Witness Jarrott says he looked in the hack at the same time Cunningham did, and that he did not see anything. The next morning, on July 11th, Cunningham and King examined the ground where this team ran away and turned over the hack. King described an impression that was made on the ground. Cunningham, the owner of the...
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State v. Hollis
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