The State v. Grubb

• Decision Date: 05 March 1907
• Parties: THE STATE v. EMORY GRUBB and RILEY ASHER, Appellants
• Court: Missouri Supreme Court

99 S.W. 1083

201 Mo. 585

THE STATE v. EMORY GRUBB and RILEY ASHER, Appellants

Supreme Court of Missouri, Division Two

March 5, 1907

Appeal from Dent Circuit Court. -- Hon. L. B. Woodside, Judge.

Affirmed.

Frank H. Farris and Harry Clymer for appellants.

(1) The offense must be prosecuted in the county in which it was committed. R. S. 1899, sec. 2406; State v. Anderson, 191 Mo. 134. And the venue is a question of fact, and must be proven by the State, the same as every other necessary averment in the information. State v. McGinnis, 74 Mo. 245; State v. Hartnett, 75 Mo. 251; State v Inman, 76 Mo. 649; State v. King, 111 Mo. 576; State v. Hottle, 104 Mo.App. 34. While it is true that the venue need not be proven by direct and positive evidence, yet it can only be inferred when the facts and circumstances proven support such inference and the jury could, from all the evidence, reasonably find the venue as charged. State v. Sanders, 106 Mo. 195. It cannot be claimed that the testimony in this case will support such inference. No injury could have resulted to the State by reason of the failure to prove the venue in Dent county, as sections 2414 and 2415, Revised Statutes 1899, make ample provision for such conditions as arose in this case, by authorizing the trial court to transfer the cause to the county in which the venue has been proven, namely to Crawford county, and this the defendants asked the court to do, and objected and excepted to the court's refusal. (2) The court erred in admitting evidence: (a) Of Cleary, the station agent, as to a conversation with Emory. (b) Of Corkran and Ives, that they did not sell any cattle to defendants. (c) Of Holt, the bank cashier, that he knew no man by the name of Emory. (3) The court erred in refusing defendants the right to offer impeaching testimony as to the general reputation of witness Collins as a citizen, as a dead-beat, and for being an honest, upright law-abiding citizen. State v Clinton, 67 Mo. 380; State v. Cushenberry, 157 Mo. 184; State v. May, 142 Mo. 150; State v Raven, 115 Mo. 423; State v. Grant, 79 Mo. 133; State v. Reder, 95 Mo. 486; State v. Miller, 71 Mo. 590; State v. Pollard, 174 Mo. 618. (4) Section 4679, Revised Statutes 1899, is the law authorizing the comparison of handwriting, and fixes the rule by which such comparison may be made. And the most liberal construction of this section cannot authorize a comparison of a disputed writing with the admitted writing of a person other than the one charged to have made the writing in dispute. State v. Thompson, 141 Mo. 408; Bank v. Hoffman, 74 Mo.App. 204; Cook v. Strother, 100 Mo.App. 622; Sanders v. Loan Ass'n, 178 Mo. 674; People v. Molineux, 62 L. R. A. 291. (5) The court erred in permitting special counsel for the State and the prosecuting attorney to go outside the record in the argument in making the statements set out in the bill of exceptions, without rebuke. State v. Spivey, 191 Mo. 112; State v. Snyder, 182 Mo. 523; State v. Elmer, 115 Mo. 401; State v. Fairlamb, 121 Mo. 150; State v. Grimm, 174 Mo. 686; State v. Groves, 95 Mo. 513.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) The proof that the alleged larceny was committed in Dent county was sufficiently strong. On that subject this court said: "But the question of venue or jurisdiction is always a question of fact, and may be proved like any other fact. If the evidence raises a violent presumption that the offense for which the prisoner is indicted was committed in the county where he was tried, it is sufficient. 1 Whart. Cr. Law, sec. 601. We cannot discover any such error as would justify us in disturbing the verdict." State v. Burnes, 48 Mo. 440; State v. Chamberlain, 89 Mo. 129; State v. West, 69 Mo. 404; State v. Sanders, 106 Mo. 195; Underhill on Crim. Evid., sec. 36. "But the venue may be inferred from circumstantial evidence, as well as proved by direct evidence." 4 Elliott on Evid., sec. 2714; Wharton on Crim. Ev., sec. 108. (2) No error was committed by the trial court in permitting State's witness Cleary to testify in regard to the three cars that the defendant had ordered, to the fact that defendant only had two car loads of cattle, and to the statement made by defendant that the third car load stampeded and got away from him. (3) (a) Neither was error committed in permitting State's witness William Corkran to testify that he did not sell any cattle to defendants in June, 1904. Hinshaw v. State, 147 Ind. 362; Walker v. State, 49 Ala. 400; People v. Arnold, 43 Mich. 305; 4 Elliott on Evidence, sec. 2723; State v. Benner, 64 Me. 289; State v. Dickson, 78 Mo. 448; State v. Ferguson, 162 Mo. 678; Wills on Cir. Ev., pp. 80, 81. (b) No error was committed in permitting State's witness Ives to testify that he did not sell the defendants any cattle branded with a horse shoe in June, 1904. Defendants' objection was properly overruled for the further reason that defendants' counsel assigned no reason for their said objection. But said evidence was proper, as it tended to identify the defendants as the persons guilty of the larceny of these cattle. State v. Walker, 194 Mo. 253. (4) The evidence of State's witness Holt, to the effect that he did not know any man in or around St. James by the name J. D. Emory, was properly admitted. Mr. Holt had previously testified that he was cashier of the bank at that place and was well acquainted with all of the stockmen in and around there. (5) No error was committed in refusing defendants the right to offer further testimony tending to impeach State's witness Collins. Defendants proved by their witness Watson that Collins' general reputation for truth and veracity and also for honesty was bad. Not satisfied with this, they asked Watson in regard to Collins' general reputation for being a dead-beat; but the State's objection to this question was sustained. The ruling of the trial court on this subject was correct. (6) By referring to the testimony of State's witness Dent, the banker, it will be seen that the prosecuting attorney asked him to compare the signature to the live stock contract with the signature to the bond; and the witness testified that in his opinion both signatures were written by the same person. Nothing whatever was asked him about the signature to the check. But on cross-examination, defendants' attorney asked the witness to compare the signature to the bond with the signature to the check. The witness did so, and gave it as his opinion that the signatures were different. If error was thereby committed, it was self-invited error, and error of which the defendant has no right to complain. State v. Hamey, 168 Mo. 197; State v. Palmer, 161 Mo. 175; Stalzer v. Dodd Pac. Co., 84 Mo.App. 574.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

This is an appeal from the circuit court of Dent county, Missouri. On September 11, 1905, the prosecuting attorney of that county filed an information charging Emory Grubb, Riley Asher and George Grubb with grand larceny in said county on the day of June, 1904, in that they took, stole and carried away forty head of neat cattle, to-wit, ten head of red colored steers about three years old, ten head of red colored steers about two years old, and ten head of red colored steers about five years old, of the value of twelve hundred dollars, of the goods and chattels of the Sligo Furnace Company, a corporation organized under the laws of the State of Missouri. At the October term, 1905, the State dismissed the case as to George Grubb and he was discharged, and at the same term the defendants Emory Grubb and Riley Asher were put upon their trial and convicted. After ineffectual motions for new trial and in arrest of judgment, they were sentenced to the penitentiary in accordance with the verdict of the jury. From that sentence they appeal.

The testimony on behalf of the State tended to establish that the Sligo Furnace Company was a corporation duly organized under the laws of the State of Missouri, and that it owned a pasture in Dent county, Missouri, which contained 2,700 acres, situated near the town of Sligo in the northern part of Dent county. This pasture was surrounded by a barb-wire fence, and the company was in the habit of taking cattle each year to graze. In April and May, 1904, some three hundred steers were placed in this pasture in charge of James Cooksey as manager and superintendent thereof. Cooksey visited the pasture about three times a week, salted the cattle and looked after the fence. It was his duty to solicit stock for the company for grazing. In April and May, 1904, stock belonging to A. J. Glassey, J. W. Glassey, Ed. Mitchell Chas. Matlock, Nathan Whites and George Bell was placed in this pasture. Some of these cattle were branded with an O, some with C, some with Q, some with G, and some with U. They were two years old, three years old, four years old and five years old, all red and all dehorned. In October, when the cattle were rounded up to be taken out of the pasture, it was discovered by Cooksey and the owners of the cattle, that fifteen of Bell's cattle and thirty-eight of Glassey's cattle were missing. Thirteen of Bell's cattle were large steers and two were small yearlings. The Glassey cattle were bigger and older, most of them being three and four years old. All of the missing cattle were gentle; fifteen of these cattle were afterwards found northeast of the Sligo pasture in Crawford county, some of them a mile away and others as far as ten miles from the pasture. The cattle were worth from twenty-five to twenty-seven dollars and a half per head. One heifer was kept in the pasture with the steers; she was three or four years old, red with a white face,...