The State v. English

• Decision Date: 05 June 1925
• Docket Number: 25699
• Parties: THE STATE v. LOUIS R. ENGLISH, Appellant
• Court: Missouri Supreme Court

274 S.W. 470

308 Mo. 695

THE STATE v. LOUIS R. ENGLISH, Appellant

No. 25699

Supreme Court of Missouri

June 5, 1925

Appeal from Shelby Circuit Court; Hon. V. L. Drain, Judge.

Affirmed.

E W. Nelson and Lewis O'Connor for appellant.

(1) The court erred in allowing the prosecuting attorney to file the supplemental transcript on the eve of the trial, over the objections of the defendant, the request to file same not coming from the clerk of the circuit court of Marion county and not being sent up and filed and done upon an order made by the Circuit Court of Shelby County to the Clerk of the Marion County Circuit Court to transmit and certify the correct record. Sec. 3983, R. S. 1919; State v Rodman, 173 Mo. 690. (2) The defendant relied upon the record of the Shelby Circuit Court in this cause being as represented by the original transcript filed on May 25, 1923, and the filing of the supplemental transcript on the 11th day of June, 1923, on the eve of the trial, was a surprise to the defendant and defendant's application for a continuance assigned on that ground should have been sustained. (3) Instruction 1 given by the court for the plaintiff is erroneous, and does not properly and fully declare the law and the punishment in the case. 16 C. J. 1025, 1026; State v. Nicholas, 222 Mo. 431; State v. Sands, 77 Mo. 119; State v. McNally, 87 Mo. 644; State v. Milligan, 170 Mo. 215. (4) Plaintiff's instructions numbered 2 and 3 and defendant's Instruction 5 are conflicting and contradictory and are confusing to the jury. Plaintiff's instructions were not cured by defendant's instruction. State v. Simms, 77 Mo. 118; State v. McNally, 87 Mo. 644. (5) The verdict of the jury is not responsive to the pleadings or the instructions and will not support a judgment. Sec. 3702, R. S. 1919 (2nd div.); 3 Graham & Waterman on New Trials, 1378; 1 Bishop Crim. Proc. (3 Ed.) sec. 1005; 2 Thompson on Trials, sec. 2640; Clark on Crim. Proc., p. 485; 1 Wharton Crim. Pl. & Prac. (9 Ed.) sec. 756; State v. Pierce, 136 Mo. 40; State v. Rowe, 142 Mo. 442; 16 C. J. 1112. (6) The evidence disclosed by the entire record was insufficient to justify or support the verdict of the jury and it should not be permitted to stand. State v. Packwood, 26 Mo. 240; State v. Brosius, 39 Mo. 543; State v. Mansfield, 41 Mo. 470; State v. Daubert, 42 Mo. 238; State v. Marshal, 47 Mo. 378; State v. Burgdorf, 63 Mo. 65; State v. Jarger, 66 Mo. 173; State v. Thomas, 78 Mo. 342; State v. Glahn, 97 Mo. 689; State v. Primm, 98 Mo. 368; State v. Young, 119 Mo. 526; State v. Prendible, 165 Mo. 353; State v. Concelia, 250 Mo. 424.

Robert W. Otto, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

(1) Inaccuracies of the transcript of the record filed by the Clerk of the Circuit Court of Marion County on the change of venue to Shelby County were properly corrected by the filing of supplemental or amended transcript by the prosecuting attorney. State v. Bell, 136 Mo. 123. (2) Appellant alleges that the verdict is not responsive to the pleadings or instructions, and therefore will not support the judgment. The charge was stealing chickens in the nighttime. Instruction 1 told the jury if they found the defendant guilty they should assess his punishment at five years in the penitentiary. The jury "find the defendant guilty and assess his punishment at three years in the penitentiary." The judgment was rendered accordingly, which was the court's duty. Secs. 3692, 3908, 4047, R. S. 1919; State v. Snyder, 98 Mo. 561; State v. Hembree, 242 S.W. 914. (a) The fact that the jury returned a verdict more favorable to appellant than the instruction would warrant, is not a matter about which he may justly complain. State v. Lowe, 93 Mo. 574; State v. Gates, 130 Mo. 357; State v. Clinton, 213 S.W. 842. (b) The testimony was sufficient to raise an issue for the jury and amply supports the verdict and this court will not interfere therewith. State v. Hembree, 242 S.W. 914; State v. Arnett, 210 S.W. 83; State v. Long, 257 Mo. 208.

OPINION

White, J.

The defendant was indicted by a grand jury in the Circuit Court of Marion County, for grand larceny under what is termed the Habitual Criminal Statute, Section 3702, Revised Statutes 1919. The indictment charged that in October, 1922, in the County of Marion, he feloniously, in the nighttime, stole thirty-four chickens of the value of $ 50, the property of Mary Glendenning; that previously he had been convicted in the Circuit Court of Marion County, in the year 1920, of larceny from a dwelling house, sentenced to serve, and did serve, two years in the penitentiary on said charge.

A change of venue was allowed and the cause sent to Shelby County where, June 12, 1923, on a jury trial, a verdict was rendered finding defendant guilty and assessing his punishment at three years' imprisonment in the penitentiary. A judgment was entered in accordance with the verdict, and the defendant appealed.

I. The appellant assigns error to the action of the trial court in overruling his demurrer to the evidence. Therefore, it becomes necessary to state the evidence at some length.

October 11, 1922, Mary Glendenning and her husband lived on a farm in Marion County. At that time she owned 162 pure-bred white Plymouth Rock chickens which she kept in a yard near her dwelling house. They were marked by celluloid leg bands, some of which bands were red and some lavender in color.

About seven o'clock in the evening of that day Mr. and Mrs. Glendenning left home to attend a tent meeting in the neighborhood. At that time the chickens were all there. The Glendennings returned home about ten o'clock, and during the night heard no disturbance. They arose about five o'clock the next morning. Mrs. Glendenning remained home all that day, and in the afternoon when she fed her chickens she counted them and found thirty-five were gone. They were pure-bred chickens, and the thirty-five missing were worth two dollars each. Leg bands were exhibited by the prosecuting attorney, and witness identified them as the same kind as those which she had upon her stolen chickens. These leg bands so exhibited had been taken from chickens brought in La Grange by one T. M. Decker the next day after hers disappeared. The chickens were never recovered.

The Glendennings lived in Round Grove Township about a mile and a half west of Hester. Elbert Carter, a witness for the State, lived about a mile and a half east of Hester, from two and one-half to three miles east of the Glendennings' house. The main road, called the Quincy-Newark road, passed through Hester. It is not clear whether this road passed Glendennings' house or Carter's house. Two main traveled roads went from Hester to LaGrange, one through Maywood and the other through Taylor. It was four miles from Hester to Maywood, and ten miles from Hester to LaGrange, making fourteen miles from Hester to LaGrange that way. It was likewise fourteen miles from Hester to LaGrange by way of Taylor. It was claimed by the State that the Glendenning chickens were sold in LaGrange early the next morning, October 12, 1922. It appears from the evidence that to go from the Glendenning home or the Carter home, on opposite sides of Hester, it was necessary to go through Hester.

T. M. Decker was engaged in the poultry business at LaGrange and knew the defendant. On the morning of October 12th about six o'clock when he got up he found on his front porch two coops filled with white Plymouth Rock chickens which had been brought and unloaded there before daylight. When he opened his place of business at six o'clock a man who gave his name as Johnson was there and sold him the chickens. Decker paid for them with a check for $ 32.04. Two of the chickens were dead. At the time the defendant was near by. Decker took several celluloid leg bands off the chickens, turned them over to the Prosecuting Attorney of Marion County, and afterwards they were identified by Mrs. Glendenning as the same kind as those she had on her chickens. The coops in which the chickens were found in front of Decker's store bore the name of a poultry dealer in Quincy. They did not belong to Decker, and were never claimed by anyone.

On the same morning, after buying the chickens, Decker made a trip to Liberty Church; about four miles out of town he saw the defendant and the man who had sold him the chickens, in a one-seated Ford runabout. They had stopped and the defendant was getting out.

Elbert Carter, who lived about two and one-half or three miles from the Glendenning place on the other side of Hester, at about nine or ten o'clock at night, October 11th, saw the defendant and a stranger in a Ford runabout about a half mile from his place towards Hester. They had run into the creek and the stranger had gone to Carter's house for the purpose of getting someone to pull the Ford out of the creek. Carter took his team and pulled it out. The defendant was present and paid him for that service. The place where the Ford was pulled from the creek was about a hundred yards from what is called the "high bridge" over the Fabia River. Carter returned home with his team. The Ford engine was running when he left the two men. It took him about fifteen minutes to get to his home, which was a half mile away, and the Ford did not overtake him, nor apparently come that way, the inference being that it probably went back to Hester, which would be on the road to LaGrange.

One Adam Lentz, as he was going home between nine and ten o'clock, on the night of October 11th, crossed the high bridge and saw a Ford runabout, with its engine running sitting near the bridge. Two men were in the Ford car, but he did not recognize either of them. He saw a man get into the car, and...