The State v. Hadlock

• Citation: 289 S.W. 945,316 Mo. 1
• Decision Date: 20 December 1926
• Docket Number: 26938
• Parties: The State v. Elgin Hadlock, Appellant
• Court: United States State Supreme Court of Missouri

289 S.W. 945

316 Mo. 1

The State v. Elgin Hadlock, Appellant

No. 26938

Supreme Court of Missouri

December 20, 1926

Appeal from Lawrence Circuit Court; Hon. Charles L. Henson Judge.

Affirmed.

William B. Skinner and Robert Stemmons for appellant.

(1) The failure to allege that the act was feloniously committed is fatal to the information. State v. Bennett, 248 S.W 924; State v. Deffenbacher, 51 Mo. 26; State v Willard, 219 Mo. 721; State v. Keating, 202 Mo. 204; State v. Burchfelder, 228 Mo. 58. (2) It was error to fail to give the usual and customary instruction on circumstantial evidence. State v. Miller, 292 Mo. 124; State v. Burrell, 298 Mo. 672. (3) The evidence obtained by the sheriff should have been suppressed because such search violated Article 4 of the Constitution of the United States, Article 5 of the Constitution of the State of Missouri, and Section 23 of Article 2 of the Constitution of Missouri. State v. Lock, 259 S.W. 116; State v. Owens, 259 S.W. 100.

North T. Gentry, Attorney-General, for respondent; Walter Sloat of counsel.

(1) Where an offense is of statutory origin, described by the statute, an information in the language of the statute, is sufficient, where the statute sets out all the elements constituting the offense. State v. McWilliams, 267 Mo. 437; State v. Anderson, 298 Mo. 382. (a) The crime here declared by the statutes to be a felony, is killing an animal, the subject of larceny, and the property of another, "with intent to steal or convert to his own use" and is properly charged herein, as feloniously done. R. S. 1919, sec. 3318; State v. Shields, 296 Mo. 389. (b) The accused well knew the charge he was called upon to answer; the court and jury, the issues they were to try. (2) The motion to suppress the evidence was properly overruled. The sheriff, having served a warrant charging a felony, had a right to search for any evidence connected with the crime. This was no violation of the constitutional rights of the accused. State v. Pomeroy, 130 Mo. 489; State v. Jeffries, 210 Mo. 302; State v. Sharpless, 212 Mo. 176; State v. Turner, 302 Mo. 660; State v. Rebasti, 306 Mo. 336. (3) There was no error in the failure of the court to instruct on circumstantial evidence. An instruction on circumstantial evidence is not such an instruction as is required by Sec. 4025, R. S. 1919, to be given of the court's own motion. Appellant's counsel did not request such an instruction; neither did they make a specific objection other than in their motion for a new trial. It was too late then for the court to instruct on this point, and the court is justly entitled to have objections raised timely. State v. Wansong, 271 Mo. 50; State v. Lee, 288 Mo. 41; State v. Parker, 301 Mo. 294; State v. Daugherty, 302 Mo. 638.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On September 14, 1925, the Prosecuting Attorney of Lawrence County filed in the circuit court of said county, a verified information, which, omitting formal parts, reads as follows:

"Rex V. McPherson, Prosecuting Attorney within and for Lawrence County, Missouri, acting herein under his oath of office and upon his knowledge, information and belief, informs the court that Elgin Hadlock, late of said County of Lawrence and State of Missouri, on or about the 2nd day of June, 1925, at and in the County of Lawrence and the State of Missouri, did then and there one white-faced bull calf, of the value of twenty-five dollars, the personal property of Chas. C. Johnson, then and there being, unlawfully, wilfully did kill, with intent then and thereby to feloniously steal and convert the carcass and hide of said white-face bull calf to his own use; against the peace and dignity of the State."

On September 18, 1925, defendant filed a motion to suppress evidence, which was overruled. On the same day he was formally arraigned, entered a plea of not guilty, was tried before a jury and on said date the following verdict was returned:

"We, the jury, find the defendant Elgin Hadlock, guilty as charged in the information and assess his punishment at imprisonment in the penitentiary for a term of two years."

Thereafter a motion for a new trial was filed, overruled, allocution granted, judgment rendered and sentence pronounced in conformity with said verdict. An appeal was granted defendant to this court.

Counsel for appellant have made a very brief and insufficient statement of the case. After reading the record, we find that counsel for respondent have made a full and fair presentation of the facts, which we adopt as follows:

"The prosecuting witness, Charles C. Johnson, lived in Ozark Township in Lawrence County. Appellant, Elgin Hadlock, living about four and a half miles from the Johnson home. Johnson had a farm of one hundred and forty-three acres adjoining the Hadlock place, on which he had at the time seven head of cattle, two cows, two yearlings and three bull calves. There was a fence between the Johnson and Hadlock farms.

"Wren Johnson, the son of Charles Johnson, went to the pasture on the second day of June and immediately after his arrival missed one of the bull calves. The missing calf was six months old, and the testimony shows that it weighed about five hundred pounds on hoof. Young Johnson went home, notified his father, and they immediately returned to this field. The cow whose calf was missing led them over to the fence where they saw an animal had apparently been killed, there being blood on the ground. The Johnsons then followed a track which had been freshly made and where something had been dragged along the ground by a horse or horses, finding a place in the adjoining field where the head and hide of a calf were still burning. Nearby they also found a stump where a carcass had apparently been cut up. The head of the calf had burned but very little, and was identified as that of a white-faced calf. The Johnsons then examined the track of the horses which had, from all appearances, been used to drag away the carcass, and found that one horse was shod in front, and the other horse had two shoes in front and one behind. They next went over on the hill where appellant, Hadlock, was working, and asked him if he had seen anyone around there. Hadlock said he had seen no one, and, examining the feet of Hadlock's horses, the shoes corresponded with the tracks found around the burning hide.

"Johnson immediately swore out a warrant charging Hadlock with killing the calf and he returned with Sheriff Austin to the Hadlock home. After arresting the appellant a search was made, and in the house they found a piece of cooked beef which had been placed in an old lard can and, in a small shed back of the house, they found the balance of a beef which, according to the testimony, would weigh about five hundred pounds on hoof.

"This evidence as to the finding of the beef was testified to by Charles Johnson, Wren Johnson and Sheriff Austin.

"Chester Wood, a fourteen-year-old boy, who was working for the Johnsons, also testified that he knew the Johnson stock and that the head of the calf which was burned, was unquestionably, one of Johnson's calves. The Johnsons both testified that the head of the burned animal was that of their calf.

"The appellant and his wife, Jennie Hadlock, testifying for the defense, swore that they had purchased a one hundred and seventy-five pound calf from Clay Woody on March 29, 1925, and had butchered it on June 1, 1925; that the beef found in their house was the calf they bought, and that they knew nothing whatever about the killing of Johnson's calf. Hadlock also testified that his team was shod different than the State's testimony related.

"A check for twelve dollars which was given in payment of the calf butchered by them was introduced in evidence. Appellant testified that the calf butchered by him was a dark-colored calf.

"The defense only offered two witnesses.

"The following testimony was introduced by defendant in support of his motion to suppress the State's evidence:

"William Austin: 'I am the Sheriff of Lawrence County, and sometime ago arrested the defendant, Elgin Hadlock. I did not have a search warrant, but after the arrest I searched his building and found some fresh beef in the smokehouse and some cooked beef in the house.' On cross-examination he testified: 'I had the warrant for the arrest of Elgin Hadlock when I went to the premises, said warrant charging him with killing a calf, and I served it at the time I made the search.'"

I. The sufficiency of the information heretofore set out, is challenged by appellant on the ground that the act complained of is not alleged to have been feloniously committed.

Section 3318, Revised Statutes 1919, on which the information is based, reads as follows: "If any person . . . shall willfully kill such animal, with intent to steal or convert to his own use the carcass or skin or any part of the animal so killed, he shall be adjudged guilty of larceny, and punished in the same manner as if he had feloniously stolen such animal."

Section 3312, Revised Statutes 1919, makes it grand larceny to feloniously steal a calf belonging to another. Section 3318, Revised Statutes 1919, clearly defines the offense with which appellant is charged, and the information follows the language of the statute. He was clearly informed by the foregoing information that he was charged with unlawfully killing Johnson's white-faced bull calf, on June 2, 1925 in Lawrence County, Missouri, of the value of $ 25, with intent "to feloniously steal and convert the carcass and hide of said white-faced bull calf to his own use; contrary to the peace and dignity of the State." We are of the opinion that the information is sufficient. [State v. McWilliams, 267 Mo. 437; State...