State v. Tomlinson, No. 38706.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtTipton
Citation177 S.W.2d 493
PartiesSTATE v. JOHN TOMLINSON, Appellant.
Docket NumberNo. 38706.
Decision Date07 February 1944
177 S.W.2d 493
STATE
v.
JOHN TOMLINSON, Appellant.
No. 38706.
Supreme Court of Missouri.
Division Two, February 7, 1944.

Appeal from Adair Circuit Court.Hon. Noah Simpson, Judge.

AFFIRMED.

Phillip J. Fowler, Gray Snyder and Fuller, Fuller & Ely for appellant.

(1) This court no longer recognizes any presumption of guilt arising from the unexplained and exclusive possession of stolen property by the defendant immediately after the larceny. State v. Deckard, 37 S.W. (2d) 414; State v. Duncan, 50 S.W. (2d) 1021. (2) While it is true that unexplained and exclusive possession of stolen property by the defendant immediately after the theft, is admissible evidence to go to the jury, such evidence alone is not sufficient to warrant a conviction; and if at the very time that the possession of the property by the defendant is discovered, he offers a reasonable explanation of how he obtained it, which is as consistent with his innocence as with his guilt, and there is no other evidence of guilt, the State is not entitled to go to the jury. State v. Duncan, supra; State v. Marquardson, 7 Idaho, 352, 62 Pac. 1034; McMahon v. People, 120 Ill. 581, 11 N.E. 883; Foresythe v. State, 20 S.W. 371.

Roy McKittrick, Attorney General, and L.I. Morris, Assistant Attorney General, for respondent.

(1) The court did not err in overruling defendant's oral demurrer offered immediately after prosecuting attorney's opening statement. Secs. 4070, 4125, R.S. 1939; State v. Loeb, 190 S.W. 299; State v. Jackson, 16 S.W. 829, 105 Mo. 196; State v. Posey, 152 S.W. (2d) 34, 347 Mo. 1088; State v. Nasello, 30 S.W. (2d) 132, 325 Mo. 442; State v. Cooper, 271 S.W. 471; State v. Neely, 56 S.W. 264; State v. McKeever, 101 S.W. (2d) 22, 339 Mo. 1006; State v. Eason, 18 S.W. (2d) 71, 322 Mo. 1239; State v. Painter, 44 S.W. (2d) 79, 329 Mo. 314; State v. Sherry, 64 S.W. (2d) 238; State v. Casteel, 64 S.W. (2d) 286. (2) It was not error for the court to refuse to direct a verdict as requested by defendant, at close of all the evidence in the case. State v. Vinton, 119 S.W. 370, 220 Mo. 90, l.c. 100; State v. Hefton, 213 S.W. 442; State v. English, 274 S.W. 470, l.c. 471, 308 Mo. 695; State v. Perkins, 116 S.W. (2d) 80, 342 Mo. 560; 16 C.J., p. 722, secs. 1579, 1580; State v. Fitzsimmons, 89 S.W. (2d) 670; State v. Bennett, 87 S.W. (2d) 159; State v. Kaufman, 46 S.W. (2d) 843. (3) Evidence in the case was sufficient to submit the case to the jury and to sustain a conviction of grand larceny. Sec. 4456, R.S. 1939; State v. Hodges, 295 S.W. 575. (4) The verdict in this case is sufficient and is responsive to the charge. Sec. 4456, R.S. 1939; State v. Hodges, 237 S.W. 1000; State v. Akins, 242 S.W. 660; State v. Haberston, 51 S.W. (2d) 553, 330 Mo. 799; State v. Hodges, 234 S.W. 790; State v. Batey, 67 S.W. (2d) 450; State v. Bishop, 231 Mo. 411, 133 S.W. 33; State v. Lovett, 147 S.W. 484, 243 Mo. 510.

TIPTON, J.


An information was filed in the circuit court of Lewis County, Missouri, charging the appellant with larceny of a certain blue-roan cow belonging to one Vadie Baker, which was valued at seventy-five dollars. On a change of venue, the case was sent to the circuit court of Adair County, Missouri, where the appellant was found guilty as charged and his punishment assessed at two years in the State penitentiary.

Is the evidence sufficient to sustain the verdict? That is the only question presented by the appellant. We will adopt the statement of facts from the appellant's brief without quotation marks. It is as follows:

Vadie Baker, the prosecuting witness in the case, is a colored man who owns a very large farm situated on the highway between Monticello and Lewistown in Lewis County. His home is on the north side of the highway, and he has certain cattle pens located on the same side of the highway and closely adjacent to his home, which are reached by a driveway which passes directly by the house. He also has a pasture, mentioned in the evidence, in this state, located on the south side of the highway. Baker is a cattle trader, dealing in large numbers of cattle at all times.

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5 practice notes
  • State v. Sallee, No. 53306
    • United States
    • United States State Supreme Court of Missouri
    • January 13, 1969
    ...was cited approvingly in State v. Durham, supra, 367 S.W.2d l.c. 621, 622(4). It was likewise held in State v. Tomlinson, 352 Mo. 391, 177 S.W.2d 493, 494(1, 2) that while recent possession of stolen property is not proof of guilt as a matter of law, it is sufficient to submit the case to t......
  • State v. Harper, No. 39069.
    • United States
    • United States State Supreme Court of Missouri
    • January 2, 1945
    ...S.W. 2d 485, 486[1, 3, 5]; State v. Nicoletti, 344 Mo. 86, 91[1], 125 184 S.W.2d 603 S.W. 2d 33, 35[2]; State v. Tomlinson, 352 Mo. 391, 177 S.W. 2d 493, 494[1, 2] (overruling State v. Duncan, 330 Mo. 656, 50 S.W. 2d 1021); State v. Kennon (Mo.), 123 S.W. 2d 46, 47[2-5]; State v. Slusher, 3......
  • State v. Shepherd, No. 39780.
    • United States
    • United States State Supreme Court of Missouri
    • June 10, 1946
    ...proof of guilt of larceny as a matter of law, has been held sufficient to submit the case to the jury. State v. Tomlinson, 352 Mo. 391, 177 S.W. 2d 493, 494 [1, 2]; State v. Harper, 353 Mo. 821, 823 [1], 184 S.W.2d 601, 602 [1-3]. This rule applies to other like offenses, such as burglary o......
  • State v. Jones, No. 49054
    • United States
    • United States State Supreme Court of Missouri
    • June 11, 1962
    ...of the possession was a question of fact for a jury. State v. McLane, Mo., 55 S.W.2d 956, l. c. 957(1); State v. Tomlinson, 350 Mo. 391, 177 S.W.2d 493, l. c. 494, 495(1)(2)(3, 4); State v. Woolsey, Mo., 328 S.W.2d Defendant's contention that 'witness Jewel Gray deviated from the truth in h......
  • Request a trial to view additional results
5 cases
  • State v. Sallee, No. 53306
    • United States
    • United States State Supreme Court of Missouri
    • January 13, 1969
    ...was cited approvingly in State v. Durham, supra, 367 S.W.2d l.c. 621, 622(4). It was likewise held in State v. Tomlinson, 352 Mo. 391, 177 S.W.2d 493, 494(1, 2) that while recent possession of stolen property is not proof of guilt as a matter of law, it is sufficient to submit the case to t......
  • State v. Harper, No. 39069.
    • United States
    • United States State Supreme Court of Missouri
    • January 2, 1945
    ...S.W. 2d 485, 486[1, 3, 5]; State v. Nicoletti, 344 Mo. 86, 91[1], 125 184 S.W.2d 603 S.W. 2d 33, 35[2]; State v. Tomlinson, 352 Mo. 391, 177 S.W. 2d 493, 494[1, 2] (overruling State v. Duncan, 330 Mo. 656, 50 S.W. 2d 1021); State v. Kennon (Mo.), 123 S.W. 2d 46, 47[2-5]; State v. Slusher, 3......
  • State v. Shepherd, No. 39780.
    • United States
    • United States State Supreme Court of Missouri
    • June 10, 1946
    ...proof of guilt of larceny as a matter of law, has been held sufficient to submit the case to the jury. State v. Tomlinson, 352 Mo. 391, 177 S.W. 2d 493, 494 [1, 2]; State v. Harper, 353 Mo. 821, 823 [1], 184 S.W.2d 601, 602 [1-3]. This rule applies to other like offenses, such as burglary o......
  • State v. Jones, No. 49054
    • United States
    • United States State Supreme Court of Missouri
    • June 11, 1962
    ...of the possession was a question of fact for a jury. State v. McLane, Mo., 55 S.W.2d 956, l. c. 957(1); State v. Tomlinson, 350 Mo. 391, 177 S.W.2d 493, l. c. 494, 495(1)(2)(3, 4); State v. Woolsey, Mo., 328 S.W.2d Defendant's contention that 'witness Jewel Gray deviated from the truth in h......
  • Request a trial to view additional results

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