State v. Tash
| Decision Date | 06 October 1975 |
| Docket Number | No. KCD,KCD |
| Citation | 528 S.W.2d 775 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Arley R. TASH, Defendant-Appellant. 27354. |
| Court | Missouri Court of Appeals |
Ralph E. Baird, Joplin, for defendant-appellant.
John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before WASSERSTROM, P.J., and SHANGLER and DIXON, JJ.
Defendant was convicted by a jury of stealing a dog. The jury failed to assess the punishment, and the trial court sentenced the defendant to two years.
Judgment and conviction are affirmed.
Defendant has raised twenty-seven points in his brief filed in this appeal. They are extremely repetitive and can be collected under twelve general headings for the purpose of review.
Since one of the categories of error claimed by the defendant is the sufficiency of the evidence to sustain the conviction, it will be necessary to state the facts which the jury could have found upon the evidence upon the basis of considering the evidence in the light most favorable to the verdict and evidence and inferences to the contrary being disregarded. State v. Jackson, 519 S.W.2d 551 (Mo.App.1975).
On June 22, 1975, defendant, his father and his brother inquired about coon dogs for sale at four households near Nevada, Missouri. One dog was purchased outright from a man named Pryor, and another dog was purchased on a trial basis and later returned. At the time the Pryor dog was purchased, the Tashes viewed and attempted to purchase another Pryor dog. Pryor refused to sell this dog. At the time of this visit to the Nevada area, the three Tashes also visited the Wilson and Deahl farms, ostensibly to view dogs and attempt purchases. On the weekend before July 4, 1972, Pryor and Wilson each discovered a valuable dog was missing, the Pryor dog being the one he had refused to sell. Acting on information they obtained while searching for the missing dogs, Larry Wilson and his father traveled to Sesser, Illinois. Arriving the morning of July 8, 1972, they went to the home of Art Loman, a dealer in dogs of the kind that were missing, where they observed a red Ford automobile bearing Kansas license plates similar to the one the Tashes were seen driving in the Nevada area. The Tashes were residents of the Baxter Springs, Kansas area. The Wilsons contacted a police officer who drove to the Loman home and went to the door. At the time this policeman went to the door, he observed someone run from the rear of the house. Mr. Loman, the Wilsons, and the policeman went to the rear of the home where Loman kept his dogs and discovered that two dogs were missing. Loman testified that when he answered the door, all three of the Tashes were in his house, having arrived there the night before, gone hunting with him and remained overnight. They had disappeared from the Loman home during the time Loman was answering the door. These facts were broadcast over the police radio and a search for the Tashes was begun. Later that morning, the defendant Tash and his brother were taken into custody by a State Trooper when they emerged from a nearby cornfield. Larry Wilson and his father, together with assistance from the police officers, continued to search for the missing dogs. They discovered footprints in the cornfield leading into the cornfield and evidence of dog tracks and marks in the soil which indicated something had been dragged over the soil going into the field, and the footprints returning from the field without the dog tracks. The dogs were found sometime in the early afternoon, the Pryor dog being tied to a tree with some baling wire and the Wilson dog being found in an injured condition in a ditch. The Wilson dog had a large gash on his head and injury to his eye. Loman testified that the Tashes had attempted to sell these dogs to him. When apprehended, the defendant made a statement to Larry Wilson that he would pay $400 rather than be prosecuted for the theft of the dog. Trooper Biggs, when he questioned the defendant and his brother upon their emerging from the cornfield, asserts that the defendant and his brother said that they had been hiding in the cornfield.
These facts, and the inferences favorable to the verdict, are sufficient to support the conviction of the defendant for the stealing of the Wilson dog which was the charge laid against this defendant.
Defendant complains of the denial of motions for continuance filed on January 24, the day of trial, and on January 16. No citation of authority is contained under this point of defendant's brief; nor is there any claim that the shortness of time between the appearance of trial counsel on the 16th and the trial on the 24th prevented the obtaining of any evidence material to the defendant's defense. The information had been on file for one and one-half years. There had been four prior continuances, and the defendant had only been in jail for a period of four days during the entire year and a half, so that he was not disabled from vigorously pursuing his defense during that time. The decision to grant or refuse the continuance was within the discretion of the trial court and will not be interfered with on appeal unless there is a clear abuse of discretion. State v. Collie, 503 S.W.2d 445 (Mo.App.1973); State v. Lee, 492 S.W.2d 28 (Mo.App.1973). Further, a defendant must demonstrate that the denial of the continuance prejudiced his case. State v. Jefferies, 504 S.W.2d 6 (Mo.1974). Under these circumstances, there is no abuse of the trial court's discretion, and no error appears.
Defendant claims that the trial court abused his discretion in overruling the motion for a continuance or the addition of persons to the venire because the panel contained persons who served as jurors in a companion case involving the defendant's brother. Again, no citation of authority is contained under this point except the due process and right to a jury portion of the Constitution and Rule 26.02. All those jurors who had served in the preceding trial were excused, and the State claims that all persons not on the jury, but who had heard testimony in the preceding case were excused. It is clear that defense counsel identified all those persons who admitted any prior knowledge of the facts, but the record does not disclose that he requested that any of these persons be excused for cause, nor is there any indication that defendant's counsel was required to use any of his peremptory challenges to remove jurors who had prior knowledge about the case. In fact, voir dire demonstrates that of those persons who had not been jurors in the prior cases, those who heard something about or had some knowledge about the case proclaimed an ability to try the case fairly despite such prior knowledge, and none admitted that such prior knowledge would prejudice them. Again, the issue of the excusing of a juror who has not admitted some prejudice or opinion with respect to the case is subject to the discretion of the trial court. State v. Spica, 389 S.W.2d 35 (Mo.1965); Cert. denied 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966); State v. Cuckovich, 485 S.W.2d 16 (Mo.banc 1972). If the defendant's assertion is that the court abused his discretion, his failure to challenge for cause constitutes a waiver of any such claim. State v. Ivy, 192 S.W. 737 (Mo.1917).
Defendant next raises as a claim of error the evidence which was offered about the theft of the Pryor dog on the grounds that it was evidence of another crime and inadmissible. There was evidence in this record that the Pryor and Wilson farms were close by. The evidence also demonstrated that the dogs disappeared from both households on the same day. The dogs were found together and had been in the recent possession of the Tashes. The State's contention is that this evidence is admissible under the common scheme or plan exception to the inadmissibility of such evidence in ordinary circumstances. Relying upon State v. Smith, 431 S.W.2d 74 (Mo.1968), and State v. Mitchell, 491 S.W.2d 292 (Mo.banc 1973), the State insists that the evidence in this case falls within the exception of common scheme or design. Examining all the facts and circumstances in this case and considering the entire record, it would seem that the State's contention is correct and that this case is one in which evidence of the theft of the other dog becomes admissible to show common scheme and design. The cases cited by the defendant, typified by State v. Mathis, 375 S.W.2d 196 (Mo.1964), can be distinguished by the absence of any facts in those cases which tended to connect or interrelate the offenses themselves rather than the defendant's connection with the offense. As noted above, there are a variety of facts here which tend to show a connection between the offenses and to demonstrate that the offenses were, in fact, part of a common scheme or design. The further elaboration of this point by defendant's assertion that the prosecutor improperly argued this evidence fails upon a finding that it was properly admitted in evidence.
Defendant's next assignment is that it was error to permit testimony of the flight of an unidentified person or persons from the Loman home because such evidence was not connected with the defendant and could not establish an inference of guilt. This assignment simply lacks the necessary factual basis to support it. Loman testified that when he went to the door to answer the police officer's knock, the three Tashes were in the house. Almost simultaneously, the officer observed someone running from the house, and upon entering the house, no one was present in the home except Mrs. Loman. A car identified at least as one similar to that used by the defendant was parked in the Loman driveway, and the defendant was apprehended after he had hidden in the cornfield. These facts clearly show flight and concealment of the defendant, and the evidence was...
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