State v. Smith

• Decision Date: 11 February 1946
• Docket Number: No. 39515.,39515.
• Citation: 193 S.W.2d 499
• Parties: STATE v. EDWARD S. SMITH, Appellant.
• Court: Missouri Supreme Court

193 S.W.2d 499

STATE v. EDWARD S. SMITH, Appellant.

No. 39515.

Supreme Court of Missouri.

Division Two, February 11, 1946.

Rehearing Denied, April 8, 1946.

Appeal from Lincoln Circuit Court. — Hon. Theadore Bruere, Judge.

AFFIRMED.

B.J. Creech for appellant.

(1) The court erred in treating the case throughout as though the information was based upon Section 4466, R.S. Mo. 1939 rather than Section 4456, R.S. Mo. 1939. Secs. 4456, 4466, R.S. 1939; State v. Harris, 82 S.W. (2d) 877, 336 Mo. 1134; State v. Lasky, 133 S.W. (2d) 334; State v. Gazell, 30 Mo. 92; 19 L.R.A. 727; 17 R.C.L. 22; State v. Starck, 63 Ind. 285, 30 Am. Rep. 214, 3 Am. Crim. Rep. 250; State v. Levy, 23 Minn. 104, 23 Am. Rep. 678, 3 Am. Crim. Rep. 272; State v. Conway, 18 Mo. 321; People v. Anderson, 14 John's N.Y. 294, 7 Am. Dec. 462; Reed v. State, 86 App. Rep. 40, 34 Am. Rep. 732; 2 Wharton, Crim. Evid., sec. 1149; State v. Fellers, 127 S.W. 95, 140 Mo. App. 723; State v. Socwell, 300 S.W. 680. (2) The trial court erred in not giving appellant's instruction in the nature of a demurrer at the close of the whole case, 32 Am. Jur. 896, sec. 10; 52 L.R.A. 136. (3) The trial court erred in not excluding the jury when the alleged confession (State's Exhibit F) was offered in evidence, and in not allowing a preliminary investigation with the jury excluded from such hearing. State v. Menz, 106 S.W. (2d) 440; State v. Gibilterra, 342 Mo. 577, 116 S.W. (2d) 88; State v. Di Stefano, 152 S.W. (2d) 20; 20 Am. Jur. 454, sec. 534. (4) The corpus delicti was not proven in the case at bar; therefore, the court erred in overruling Assignment No. 6 of appellant's motion for a new trial. State v. Hawkins, 165 S.W. (2d) 644. (5) The trial court erred in admitting introduction into evidence of the notice in the Troy Free Press, as fully explained in appellant's Assignment No. 7 of his motion for a new trial. Green v. Ashland Water Co., 101 Wis. 258, 77 N.W. 722, 43 L.R.A. 117, 70 Am. St. Rep. 911; Corti v. Cooney, 191 Wis. 464, 211 N.W. 274; Horgew v. Chaseburg State Banks, 279 N.W. 33; Hathaway v. Tinkham, 19 N.E. 18; Georgia Power & Light Co. v. Baxter, 171 S.E. 309; Stubbs v. Rochester, 163 App. Div. 245, 148 N.Y.S. 804. (6) The trial court erred in admitting in evidence, over appellant's objection, Exhibit E. being the note written by the appellant to his wife, as specifically objected to in Assignment No. 8 of his motion for a new trial. State v. St. John, 94 Mo. App. 229, 68 S.W. 374; Art. 2, Sec. 23. Constitution of Mo. 1875; State v. Rebasti, 267 S.W. 858, 306 Mo. 336. (7) The court erred in giving, of his own motion. Instruction 5. Instruction 5 was a main instruction predicated on a specific date, to-wit the 6th day of December, 1943. There is no evidence in the record that a crime of larceny was committed on this day. See cases cited under point (1). (8) Instruction 5 was erroneous for the reason that it did not incorporate the defense of the appellant, i.e., that he had a right to possess the cattle after the same were running out of the enclosure of the owner thereof under the stock law which existed in Lincoln County. Mo., at the time of the charge, as Section 14463. Article 6, Chapter 103, R.S. Mo. 1939 gave appellant the lawful right to possess said cattle under the facts and circumstances shown in evidence. See cases cited under point (1); Sec. 14463, Art. 6, Chap. 103, R.S. 1939; State v. Busch, 119 S.W. (2d) 265, 342 Mo. 959; State v. Collins, 237 S.W. 516, 292 Mo. 102; State v. Slusher, 301 Mo. 285, 256 S.W. 817; Sec. 4070, R.S. 1939. (9) The court erred in giving instructions 5 and 6 for the two instructions are diametrically opposed to each other and had the illegal effect of confusing the jury as to when and under what circumstances the defendant could be, or should be, convicted of the crime charged. State v. Hamlin, 171 S.W. (2d) 716, 351 Mo. 157; State v. Fellers, 140 Mo. App. 723, 127 S.W. 95; State v. Socwell, 300 S.W. 680; State v. Taylor, 133 S.W. (2d) 336, 345 Mo. 325. (10) The trial court erred in giving of its own motion Instruction 3, being an instruction on circumstantial evidence because of the fact that there was no circumstantial evidence in the case and said Instruction had the illegal effect of inviting the jury to guess and surmise as to whether the defendant should or could be convicted of the crime charged. State v. Huff, 184 S.W. (2d) 447; State v. Hubbard, 351 Mo. 143, 171 S.W. (2d) 701; State v. Conway, 348 Mo. 580, 154 S.W. (2d) 128; State v. Crone, 209 Mo. 316, 108 S.W. 555; State v. Denison, 178 S.W. (2d) 449. (11) The trial court erred in giving, of its own motion. Instruction 4 in this that said instruction failed to advise the jury that one of the essential elements of grand larceny is the asportation of the property charged to have been stolen, and that an asportation could not occur at a subsequent time, to-wit: December 6, 1943, after the appellant had acquired the possession of the property on December 5, 1943, 36 C.J. 747, sec. 43; 32 Am. Jur. 896, sec. 10; State v. Gazell, 30 Mo. 92; Cooper v. Commonwealth, 60 S.W. 938, 110 Ky. 123, 52 L.R.A. 136; 96 Am. St. Rep. 426. (12) The trial court erred in attempting to examine Sheriff Palmer in the presence of the jury, over the objection of the defendant, wherein the court made inquiry of the sheriff as to whether or not he used any force, weapons or threats to bring about the statement or confession erroneously admitted in evidence. State v. Tharp, 64 S.W. (2d) 249, 334 Mo. 46; State v. Nagle, 326 Mo. 661, 32 S.W. (2d) 596. (13) The trial court erred over the objection of the appellant in allowing the prosecuting attorney to call the Sheriff (W.H. Palmer) in rebuttal and to question the officer as to matters that could not be admissible in rebuttal, and for the court to again question the officer to assist the prosecuting attorney in bolstering prosecution in this cause, all of which was highly prejudicial to this appellant. State v. Harmon, 278 S.W. 733; Quinn v. Berberich, 68 S.W. (2d) 925. (14) The trial court erred in admitting State's Exhibit F. which was the alleged written statement or confession for the reason that said statement was merely a narration of Officer Sobolewski, and not that of the appellant. Further, the appellant was erroneously precluded of an opportunity to have a determination as to the voluntariness outside the presence of the jury. (15) The trial court erred in giving Instruction 6 of its own motion: Because said instruction is in conflict with Instruction 5. (16) The two instructions, 5 and 6, when read together, confuse the jury and further, they clearly indicate that the trial court was confusing Section 4466 with Section 4456, R.S. Mo. 1939. See cases cited under point (9).

J.E. Taylor, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err in treating the case as based upon Section 4456, R.S. 1939. Secs. 3952, 4456, R.S. Mo. 1939; State v. Bloomer, 231 S.W. 568; State v. Collins, 237 S.W. 516, 292 Mo. 102; State v. Martin, 28 Mo. 530; State v. Nichols, 130 S.W. (2d) 485; State v. Osborne, 292 S.W. 56; State v. White, 126 Mo. 591, 29 S.W. 591; 125 A.L.R. 367; 32 Am. Jur. 958; 36 C.J. 771, sec. 127. (2) The court did not err in refusing to give appellant's demurrer to the evidence at the close of the whole case. Secs. 3952, 4456, 4466, R.S. 1939; State v. Bloomer, 231 S.W. 568; State v. Collins, 237 S.W. 516, 292 Mo. 102; State v. Jenkins, 213 S.W. 796; State v. Martin, 28 Mo. 530. (3) The court did not err with reference to the admission of the confession of the appellant. State's Exhibit F. (4) The court did not err in holding that the corpus delicti was proven. State v. Bloomer, 231 S.W. 568: State v. Cunningham, 33 S.W. (2d) 930; State v. Fitzsimmons, 89 S.W. (2d) 671, 338 Mo. 230; State v. Sinovich, 46 S.W. (2d) 877, 329 Mo. 909. (5) The court did not err in admitting in evidence the notice in the Troy Free Press. 34 C.J., sec. 436, p. 879; State v. Willard, 142 S.W. (2d) 1046, 346 Mo. 773. (6) The court did not err in admitting in evidence State's Exhibit E. State v. Rebasti, 267 S.W. 858, 306 Mo. 326. (7) The court did not err in giving instructions 3, 4, 5 and 6. Sec. 3952, R.S. 1939; State v. Bennett, 87 S.W. (2d) 159; State v. English, 228 S.W. 746; State v. Frazier, 137 Mo. 317, 38 S.W. 913; State v. Gunther, 169 S.W. (2d) 404; State v. Nichols, 130 S.W. (2d) 485; State v. Woodall, 300 S.W. 712; State v. Arnett, 338 Mo. 907, 92 S.W. (2d) 897; State v. Shelby, 333 Mo. 610, 62 S.W. (2d) 721; State v. Gray, 37 Mo. 463; State v. Price, 153 S.W. (2d) 353, 348 Mo. 361.

TIPTON, J.

Appellant was convicted of the crime of grand larceny of neat cattle in the circuit court of Lincoln County, Missouri, and his punishment was assessed at two years' imprisonment in the state penitentiary. From that judgment and sentence he has duly appealed.

The evidence discloses that two white-faced muley heifers weighing between 700 and 750 pounds had strayed from the farm of George Nassar on December 5, 1943. George Nassar, the owner of these two heifers, saw them on his farm on December 5, 1943, and he missed them from his farm on December 8, 1943. The state had testimony that these two heifers were seen in a public road a short distance from a farm which appellant rented. Appellant testified that these heifers had frequently trespassed upon the land he had rented, and on December 5, 1943, they again were upon this land; and that about 4:00 o'clock P.M. of that day while the two heifers were trespassing upon his land he and Earl Nichols impounded them in a pig pen located in back of the house which was near a public road.

Due to the fact that these were rogue heifers and had frequently trespassed upon his crop lands, appellant decided while eating supper that he would sell them. About 7:30 o'clock P.M. of that day, appellant drove to Truxton, Missouri, and engaged Edward...