State v. Tisher

• Decision Date: 03 May 1938
• Docket Number: No. 35407.,35407.
• Citation: 119 S.W.2d 212
• Court: Missouri Supreme Court
• Parties: STATE v. TISHER.

119 S.W.2d 212

STATE v. TISHER.

No. 35407.

Supreme Court of Missouri, Division No. 2.

May 3, 1938.

Rehearing Denied August 17, 1938.

Appeal from Circuit Court, Dade County; Thomas W. Martin, Judge.

Everett F. Tisher was convicted of larceny, and he appeals.

Affirmed.

Collins & Pierce, of Springfield, for appellant.

Roy McKittrick, Atty. Gen., and Aubrey R. Hammett, Jr., Asst. Atty. Gen., for the State.

WESTHUES, Commissioner.

Appellant was charged in the circuit court of Dade county, Mo., with the crime of burglary and larceny. A trial resulted in a verdict of not guilty as to the burglary but guilty as to the larceny. The jury failed to agree upon a punishment and the trial court assessed a punishment of five years' imprisonment in the penitentiary. The defendant duly appealed. Appellant contends that the evidence was insufficient to sustain the conviction. This is the only point briefed by appellant.

The state's evidence disclosed the following: On the night of December 24, 1935, the store of H. D. Gelsinger, at Cedarville, Dade county, Mo., was burglarized, and groceries, dry goods and clothing, valued at $250, were stolen. The county officers made an investigation and found car tracks near the store building and human tracks leading from where the car had been parked toward the store. They also found paper tags, or labels, from canned goods near where the car had been parked. The Dade county officers sent a list of the stolen articles to the police department of the city of St. Louis. Police officers of that city went to the home of appellant, Tisher, and found a portion of the stolen property in the basement. The Dade county officers and Gelsinger went to St. Louis and Gelsinger identified the property as belonging to him. The state introduced evidence, by a number of witnesses, that appellant stated to Gelsinger and the officers at police headquarters in St. Louis that he, appellant, had received a letter from his mother-in-law, who lived in Dade county, stating that Gelsinger's store had been burglarized; that appellant also stated that when he received this letter he thought the articles in his possession belonged to Gelsinger and was preparing to return them when arrested. These witnesses also testified that appellant told them he had bought the goods at Springfield, Mo., on December 28. It was also shown by the evidence that appellant owned a new Ford V-8. A new car with two tail-lights, which seemed to be heavily loaded, was seen passing along a road from Cedarville, about 12:30, on the night of December 24. It was shown that the Ford cars, such as appellant owned, have two tail-lights. The car was seen about one mile from Cedarville. It was also shown by the evidence that appellant was well acquainted with Gelsinger and had traded at his store. Appellant had traveled in Southwest Missouri for an advertising concern, but had moved to St. Louis and had lived there for a number of years prior to the time the store was burglarized.

Appellant's defense was an alibi. In support of this defense he introduced substantial evidence that he was at his home in the city of St. Louis on the 24th and 25th of December, 1935, which is more than three hundred miles distant from Dade county, Mo. If this evidence in support of the alibi defense was true, it was impossible for appellant to have been in Cedarville on the night of December 24.

Appellant's explanation of his possession of the goods was that he drove to Springfield on December 28, leaving St. Louis about 4:00 or 5:00 a. m. and arriving in Springfield about 11:00 a. m.; that he parked his car near the court house in Springfield and within a few minutes a man, whom he did not know, driving a Ford pick-up truck, parked the truck beside his car, and began a conversation with him. Appellant testified that the man called him "Tish" and approached him about buying some goods; that he explained he was quitting business and had only a small amount of goods left on hand which he had in the Ford truck. Appellant stated that he had been drinking and had a number of drinks with this stranger; that after some argument about the price, he paid the stranger $35 for the goods; that the merchandise was loaded into his Ford V-8. Appellant testified that he did not know what he had bought; that he was then too intoxicated to drive the car, so he left it parked at this point until the next morning, when he drove to St. Louis and placed the goods in his basement; that he used a few cans of the groceries and wore a jumper or overalls. Appellant denied that he told Gelsinger and police officers of...