State v. Stark

• Decision Date: 23 February 1923
• Docket Number: No. 24156.,24156.
• Citation: 249 S.W. 57
• Parties: STATE v. STARK.
• Court: Missouri Supreme Court

249 S.W. 57

STATE v. STARK.

No. 24156.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from Circuit Court, Shannon County; E. P. Dorris, Judge.

Rude Stark was convicted of grand larceny, and he appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., and E. W. Otto, Asst. Atty. Gen., for the State.

Statement.

RAILEY, C.

On September 12, 1921, a proper information was filed in the circuit court of Shannon county, Mo., which charged defendant with grand larceny, in having feloniously stolen certain neat cattle in said county on the ____ day of October. 1919. He was arraigned, entered a plea of not guilty, was tried before a jury, and the latter on March 16, 1922, found him guilty and assessed his punishment at two years in the state penitentiary. On March 17, 1922, defendant filed his motion for a new trial, which was overruled, and, after sentence and judgment were rendered, he appealed the cause to this court.

State's Evidence.

The evidence on the part of the state is substantially as follows: Lee Helton, in October, 1919, was visiting his brother on Current river near the Texas county line. At this time defendant was living two or three miles from Hartshorn, in Texas county. About the 16th of October, 1919, Lee Helton went to see defendant about making a horse trade. The next morning defendant and. Lee Helton drove to Fred Helton's place. Later Lee Helton and defendant took a walk, at the suggestion of defendant, who said he was looking for some cattle which had been lost. They saw several bunches of cattle, and when they came to a white-face bull defendant said, "There is one of the cattle I am after," and was told by Lee Helton that the above bull belonged to Mr. Weese. The next morning, after they had stayed all night at Fred Helton's home, the two Heltons and defendant took a walk toward the Boyd creek schoolhouse and saw several bunches of cattle. The Heltons told defendant who owned each of the bunches of cattle. Finally they saw five head of cattle, and defendant said, "There are the cattle, I believe." He asked permission to put these cattle in Fred Helton's field, which was granted, and defendant arranged with Lee Helton to drive them to appellant's place the following day for $3. Defendant then left Helton's place, about 11 or 12 o'clock at night, and Lee Helton remained with his brother Fred. It rained the next day, but on the following day Lee Helton, accompanied by his brother, Fred, drove the five head of cattle to defendant's place. The five head were described as follows: One three year old stag, with white spots on his body, and with a Barrett and Peck's label in its ear; a two or three year old heifer, a dark red heifer, with a label of Spence Banks in its ear; a yearling, mostly red, with a label bearing Mr. Willis' name; a steer with a short tail, that bore a label of Mr. Hines, and a pale red steer, with a label bearing the name of Mr. Cox.

They arrived at defendant's place with these five cattle about sundown. Fred and defendant traded horses, and the former started home and left Lee, who stayed with defendant overnight. The next evening defendant took a pole, axe, and rope, killed the bull, skinned it, and carried the entrails into a cornshed. The following day defendant killed two or three of the cattle, and on the next day, with Lee Helton, drove to Cabool with the meat `and hides. On the way to Cabool defendant stopped and threw the heads of the cattle he had killed into an old well. On arriving at Cabool defendant drove to a place where the hides were sold, for which he collected $24, and paid Lee Helton $3 for driving the cattle to appellant's home. Afterward defendant tried to sell the meat to a butcher, who refused to buy it. Defendant and Lee Helton then started to return to defendant's home, and on the way appellant threw the beef out to some hogs along, the side of the road. On the next day Lee Helton left defendant's house and returned to his brother's home.

Defendant's Evidence.

The evidence on behalf of defendant tended to prove that he traded a mare for a cow and, calf; that after the trade Lee and Fred Helton brought the cow and calf, a deep red heifer, a pale red steer, and a small steer to appellant's place; that later defendant traded the heifer for a cow that was giving milk, and traded said cow for a mare; that he never made a trip to Cabool with a load of meat, and did not help Lee Helton throw the cattle heads into an old well. The defendant denied that he stole any cattle, and claimed to be innocent.

The instructions and rulings of the court as far as necessary, will be considered hereafter.

Opinion.

No brief has been filed in behalf of defendant, and hence we will examine the evidence and proceedings to determine whether he was properly tried.

1. The sufficiency of the information was not challenged by motion in arrest of judgment, or otherwise. It charges defendant with having feloniously stolen, etc., the cattle therein mentioned, at the time and place designated. It is sufficient as to both form and substance. Section 3312, R. S. 1919; State v. Hodges (Mo. Sup.) 237 S. W. loc. cit. 1000; State v. Hodges (Mo. Sup.) 236 S. W. loc. cit. 790; State v. Jones (Mo. Sup.) 225 S. W. loc. cit. 899; State v. Jenkins (Mo. Sup.) 213 S. W. 796.

2. The first assignment of error in the motion for a new trial reads as follows:

"Because the court erred in admitting incompetent, irrelevant, and prejudicial evidence on the part of the state, over the objections of the defendant."

The only objection made to the testimony by defendant, is found on page 40 of the transcript, where the following occurred: The sheriff was detailing a conversation which he had with defendant concerning the execution of a bond. The sheriff testified:

"I asked who he (defendant) would get on his bond and he thought a man by name of Coatney would go on his bond, that lived two or three miles, and the four of us got in the car and we went back east and got to Mr. Coatney's about dark, and Mr. McCaskell honked his car and Mr. Coatney came out, and before he reached us, perhaps as far as across this room, Mr. Stark...