State v. Stoner
| Decision Date | 11 October 1965 |
| Docket Number | No. 1,No. 51150,51150,1 |
| Parties | STATE of Missouri, Respondent, v. Earl E. STONER, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Donald L. Manford, Asst. Atty. Gen., Kansas City, for respondent.
Charles A. Moon, Springfield, for appellant.
HIGGINS, Commissioner.
Earl E. Stoner was convicted as charged by the information of concealing mortgaged property of the value of $2,800, a felony, and the jury assessed his punishment at 2-years' imprisonment. Section 561.570, RSMo 1959, V.A.M.S. Sentence and judgment followed and defendant has appealed.
Respondent contends that the appeal should be dismissed for failure of appellant to file a timely motion for new trial. Criminal Rule 31.01, V.A.M.R., provides that in computing time, the day of the act, event, or default after which the designated period of time begins to run is not to be counted or included, and the last day of the prescribed time is to be counted or included unless such last day be a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a legal holiday. The verdict in appellant's trial was received October 16, 1963, and the time for filing motion for new trial was properly enlarged as provided in Criminal Rule 27.20(a), V.A.M.R., until on or before November 25, 1963. Appellant's motion for new trial was filed November 26, and such late filing would preclude review unless November 25, 1963, was Sunday or a legal holiday. We take judicial notice that November 25, 1963, was proclaimed by President Lyndon B. Johnson to be a National Day of Mourning for the State Funeral of John F. Kennedy, 34th President of the United States. November 25, 1963, was thus constituted a holiday, the courts were not open for business and appellant's motion, ordinarily due on that date, was properly and timely filed the following day. See Shannon County ex rel. Winona Consolidated School Dist. v. Shannon County Bank, 229 Mo.App. 895, 86 S.W.2d 1070, 1072[2, 3], and cases there cited.
The main question presented is that of the sufficiency of the evidence to support the verdict, the contention being that the evidence is not 'of the character required to justify an inference of defendant's guilt of the crime charged.'
The information charged defendant with the felonious concealment of 5 Guernsey cows, 4 to 6 years oid; 2 Holstein cows, 6 to 8 years old; 4 Angus cows, 3, 4, 5, and 8 years old; 1 Holstein heifer, 2 years old; 1 black heifer, 2 years old; 2 white-faced heifers, 1 year old; 1 Angus bull, 2 years old; 1 roan white-faced steer; 1 Holstein steer; 5 Angus steers; 8 Holstein and Angus steers; 7 yearling mixed breed steers; all of the value of $2,800, with intent to defraud the mortgagee, Bank of Raymondville, under a chattel mortgage covering such property and given to that bank by defendant and his wife April 9, 1962, to secure their note in sum $2,756.75.
E. L. Daugherty, cashier and loan officer of the Bank of Raymondville, testified that his first dealings with appellant occurred February 10, 1962, when he made appellant a personal loan of $300. On March 2, 1962, appellant obtained a loan of $1,250 which paid the $300 loan. On March 26, 1962, appellant obtained a loan of $1,756.75 and pledged 22 head of mixed cattle as security. On April 9, 1962, appellant obtained a loan of $2,756.75 which paid the $1,756.75 loan and provided an additional $1,000 needed for the purchase of some cattle in Iowa. This last loan was represented by a 6-months' term note and was secured by a chattel mortgage on 38 head of unmarked cattle generally described as above in the information. The mortgage was executed by appellant and his wife and was recorded in the office of the Recorder of Deeds for Texas County, Missouri, April 12, 1962. It did not specify where the cattle were located.
The purchase of cattle in Iowa took place March 6, 1962, from the Iowa City Sales Company and it involved 24 cattle costing $2,762.59. According to witness Herman Pottebaum, he furnished $2,762.59 for the Iowa purchase and appellant gave him a note dated March 9, 1962. Mr. Pottebaum understood that appellant was to secure the loan by giving a mortgage on 32 head of cattle, 8 of which were supposed to be on the place where appellant lived near Simmons and 24 of which were in the Iowa sale yard. Witness Pottebaum testified also that on an occasion between the 10th and 20th of March, 1962, he went to a place near Simmons about a quarter of a mile from where appellant lived, and earmarked 1 black horse and 32 head of cattle which he described as 2 Angus cows, one 10 and one 8 years old; 1 Angus cow, 3 years old; 1 Angus cow, 6 years old; 2 roan cows, 3 years old; 1 roan redneck cow, 4 years old; 1 roan mottle-faced cow, 6 years old; 1 Guernsey cow, 4 years old; 2 Guernsey cows, 5 years old, 1 Guernsey cow, 10 years old; 1 Guernsey cow, 4 years old; 1 Guernsey cow, 5 years old; 2 Holstein cows, 5 and 6 years old; 1 Hereford steer calf, 300 pounds; 1 Angus bull, 350 pounds; 4 Angus steer calves, 250 pounds; 1 Holstein calf, 275 pounds; 1 Holstein heifer yearlings, 500 pounds; 1 black white-faced ring-eyed steer calf, 250 pounds; 1 black heifer calf, 150 pounds; 1 roan heifer calf, 160 pounds; 1 roan Guernsey yearling heifer, 500 pounds 1 black-faced brown heifer yearling, 500 pounds; 1 Hereford mottle-faced heifer yearling, 500 pounds; 1 Hereford heifer, year and a half, 515 pounds; 1 Hereford heifer yearling, 350 pounds. This was all the cattle that appellant was supposed to own at the time. The earmarking was done by taking a little piece out of the top of each ear of the cattle which is called 'overbit.' Several days went by without appellant executing the chattel mortgage promised to Pottebaum, and then he learned that the cattle were mortgaged to the Raymondville bank. On April 18, 1962, he sued appellant, and Earl Hutcheson, Deputy Sheriff of Texas County, attempted to obtain service on appellant.
In the first part of May, 1962, witness Jim Wells told appellant that some of appellant's cattle were on the Wells property which was south of the Johnson farm leased by appellant. There were 12 to 15 cattle on the Wells place.
Payton Smyers testified that he owned a place which cornered with the Johnson place, and that in May, 1962, he saw appellant put in a cattle guard at the southeast corner of the Johnson place. Appellant told the witness that he had leased the Johnson farm. During the summer the witness fished the Piney River a number of times near the Johnson farm and counted fifteen head of Stoner cattle on the Johnson farm. He also saw nine of them in his garden twice on the same day. 'There was Holsteins, swayback Jerseys * * * just a--mixed herd of--of cattle.' The other cattle and calves did not get in the garden. The cattle...
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