State v. Watson

• Decision Date: 11 March 1937
• Docket Number: No. 35105.,35105.
• Citation: 104 S.W.2d 272
• Court: Missouri Supreme Court
• Parties: STATE v. WATSON et al.

104 S.W.2d 272

STATE v. WATSON et al.

No. 35105.

Supreme Court of Missouri, Division No. 2.

March 11, 1937.

Rehearing Denied April 21, 1937.

Appeal from Circuit Court, New Madrid County; James M. Reeves, Judge.

J. W. (Smokey) Watson and Tom Evans were convicted of grand larceny, and they appeal.

Affirmed.

Geo. M. Munger, of Bloomfield, and Edward F. Sharp, of New Madrid, for appellants.

Roy McKittrick, Atty. Gen., and James L. Hornbostel, Asst. Atty. Gen., for the State.

COOLEY, Commissioner.

Appellants were charged by information filed in the circuit court of New Madrid county with the crime of grand larceny for having, as it is alleged, stolen a steel and iron road bridge, the property of New Madrid county, which had previously been located on drainage ditch A on U. S. Highway 62 in said county. They were tried jointly and convicted, each being sentenced to two years imprisonment in the penitentiary, from which sentences they appealed. They have filed a joint brief in this court. One ground urged for reversal is the alleged insufficiency of the evidence. In stating the facts we shall quote liberally (with slight corrections and without using quote marks) from the statement of facts in the brief filed by the Attorney General's office, which appears to us to be a fair and concise statement of the facts as shown by the state's evidence.

The State Highway Department in constructing a new road, U. S. Highway 62, abandoned the old county road on which were located several bridges over drainage ditches. The bridges were removed from their locations. The one at ditch A was placed along the side of the ditch.

The county highway engineer, Coy Bynum, testified that on the 15th day of May, 1934, he had under his charge and custody four of such bridges. The bridges removed had formerly been located at ditch 1, ditch A, ditch 2, and ditch 18. The bridge at ditch A (the one appellants are charged with stealing) was fifty or sixty feet off the main right of way of the new road U. S. 62. When the bridge at ditch A was removed and placed off the main right of way, it was a complete bridge with the exception of the foundation and the floor.

When the bridge at ditch A was needed by the county, Mr. Bynum went to where it had been placed when removed by the Highway Department, but the bridge was gone. Mr. Bynum made an investigation, with the result that the bridge, or the material thereof, that was formerly located at ditch A was found at Mr. Coleman's gin. It was shown that Jake Goldstein had sold the bridge, or the material thereof, to Coleman or to an employee of his, W. M. Foster.

Alec Waters, an employee of the State Highway Department, and the engineer on the construction of Highway 62 remembered the bridge in question at ditch A and placed the approximate value of same between two and three hundred dollars.

When the State Highway Department removed bridges, occasioned by the construction of a new road, it was its practice to turn over to the county all the old bridges not needed. The bridge at ditch A was not needed by the Highway Department and, consequently, was turned over to the county of New Madrid and left for the use and disposal of the county. The bridge when it was removed was off the new highway and did not interfere with traffic on the new road.

Grandville Phillips, maintenance engineer, when making an inspection trip over Highway 62 with the bridge maintenance engineer of Jefferson City, received instructions to remove all bridges and pieces of iron and junk located on Highway 62. There was only one bridge located on the highway at that time, which was at ditch 2. Mr. Phillips, after being instructed to remove said bridge at ditch 2, contacted a junk dealer at Sikeston, Mr. Jake Goldstein, and arranged for the removal of said bridge. He said he had no charge or control of the bridge over ditch A as it was not on Highway 62, and did not have Goldstein or anybody else "do anything with reference to the bridge at ditch A." Jake Goldstein agreed to move the bridge at ditch 2 if he could hire somebody to haul it. Goldstein was acquainted with appellants and employed them to haul the bridge at ditch 2 at $3 a ton. Before the bridge was hauled by appellants, Goldstein took them to Mr. Phillips' office, at which time Mr. Phillips made a sketch of the location of where they would find the bridge, that is, the bridge they were to remove, the one over ditch 2. Appellants said they understood it. Three loads, or about ten tons, of bridge material, were hauled by appellants to Mr. Goldstein's junk yard. Mr. Phillips made it plain to appellants what bridge they were to remove.

Mr. W. M. Foster, an employee at Coleman's gin, purchased bridge material from Mr. Goldstein, which material was identified as being parts of the bridge that had been located at ditch A.

The three members of the county court testified that they had never given the county's permission to any one to remove the bridge at ditch A. S. S. Thompson, presiding judge, detailed a conversation he had with appellant Watson, in which Watson asked permission to remove the bridge at ditch A. Watson at first wanted to buy the bridge, and on being refused came back a second time and wanted to move it and paint same. The presiding judge informed appellant Watson that the county would probably find a place for the bridge when one of the wooden bridges became damaged and the county would save money by then moving the bridge from where it was then located to the location where it was to be used. Each of the judges denied ever giving appellant Watson or any one else permission to remove or take any part of the bridge. When the county desired the bridge for use at another place and it was discovered that it was gone, appellant Watson again had a conversation with the judges in which Watson admitted taking the bridge but gave as his reason that he had obtained the permission of Mr. Phillips of the State Highway Department. Phillips' testimony on this point contradicts that of appellants as to the ditch A bridge.

Appellants denied taking the bridge at ditch A. They, however, admitted taking one bridge, same being the one that they had permission from Mr. Phillips to move. They hauled all bridge material to Jake Goldstein's junk yard.

Summing up and to some extent supplementing the above statement of facts, taken substantially from the state's brief, we may say that the state's evidence tended to show that appellants were not authorized to take and remove the bridge in question, which was not on the right of way of the newly constructed Highway 62, but on the old abandoned road and near ditch A over which it had formerly served as a bridge, and that there was evidence from which the jury could legitimately find that they so understood. Defendants' evidence tended to show that they took and hauled away only bridge material and metal in the nature of junk which had been left and, apparently, abandoned on the right of way of Highway 62 and which Mr. Phillips had indicated to them was the material he had authorized Goldstein to have removed. It is not contended that they sold the material to Goldstein or kept or used it themselves, and there is no evidence tending to prove that they sold any material from this particular bridge to any one else. They did sell some old bridge material at Cairo, Ill., but that was accounted for and is not shown to have come from said ditch A bridge. It is apparently conceded, at least is clearly shown, that they hauled the material in question for Goldstein and delivered it to him, receiving $3 per ton for so doing, and that they were authorized so to haul and deliver only the materials indicated to them by Mr. Phillips and such as remained on the right of way of the then new Highway 62. Goldstein had not seen the materials and he paid appellants for the hauling of whatever they brought him.

Under the evidence, which we have outlined, we are constrained to hold that the state made a case to go to the jury. It must be conceded that there is room in the evidence, especially if we could consider that offered by the defendants, for a finding that they misunderstood what material Mr. Phillips authorized them to take and remove. He did not go with them and point out such material, but the state's evidence tends to show that he definitely indicated it to them, described its location, and made a plat or sketch thereof which they said they understood. The evidence further tended to show that defendants were authorized to take and remove only a bridge or abandoned bridge material on said Highway 62 (the reason being that such things on the right of way constituted or might constitute obstructions to traffic), and that the bridge in question was not on said highway but on the old abandoned road. In this connection it should be further stated that it seems apparent from the record that defendants understood or may be found...