The State v. Nave
| Decision Date | 04 June 1920 |
| Citation | 222 S.W. 744,283 Mo. 35 |
| Parties | THE STATE v. MACK NAVE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Taney Circuit Court. -- Hon. Fred Stewart, Judge.
Reversed.
G. W Thornberry and D. F. McConkey for appellant.
(1) This conversation between witness Combs and Willis Nave, the father of defendant, to the effect that they believed the defendant was guilty, had in the absence of the defendant was incompetent for any purpose and wholly inadmissible and highly prejudicial. (2) Taking all the testimony in connection, it is not sufficient to warrant a conviction under the law. The testimony is purely circumstantial and does not establish the corpus delicti, which is necessary in all cases to sustain a conviction. (3) Mere suspicion however strong, will not supply the place of evidence when life or liberty is at stake. State v. Jones, 106 Mo. 313; State v. Hammond, 226 Mo. 604; State v. Crabtree, 170 Mo. 657.
Frank W. McAllister, Attorney-General, and George V. Berry, Assistant Attorney-General, for respondent.
The bill of exceptions is not authenticated by the trial Judge; therefore, there is nothing before this court but the record proper. Secs. 2030-2037, R. S. 1909; State v. Griffin, 249 Mo. 626; State v. Watts, 248 Mo. 495; State v. Brown, 216 Mo. 377; State v. Libby, 203 Mo. 597; State v. Collins, 196 Mo. 88; Reno v. Fitz Jarrell, 163 Mo. 413; Cooper v. Maloney, 162 Mo. 687; State v. Brown, 164 Mo.App. 727.
WHITE, C. Railey and Mozley, CC., concur.
The defendant was indicted in the Circuit Court of Taney County on a charge of grand larceny, was convicted April 24, 1919, and his punishment assessed at two years' imprisonment in the State Penitentiary, and appealed.
Defendant was charged with stealing two mules that belonged to James Beck. Beck lived just within the State of Arkansas, about three miles from Protem, Missouri. On the night of August 11, 1916, which was said by the witnesses to be Friday night, two bay mules belonging to Beck disappeared and he was unable to find them. About six weeks later he learned they were at the barn of Rich Kissee at Ozark, in Christian County; he went there, identified them and took them away. On Monday following the Friday night on which the mules were stolen, they were sold to Stone & Hesterlee, by one Wayne Moulder, for $ 160, although at the time they were worth $ 235. Stone & Hesterlee immediately sold them to Kissee.
The facts relied upon by the State to connect the defendant with the theft of the mules, briefly are as follows:
Mack Nave was a boy about fifteen years of age and lived with his father, Willis Nave, in Taney County, about twenty miles from where Beck, the owner of the mules, lived. Willis Nave had a son, Perry Nave, who lived in the neighborhood of Protem, a few miles from where Beck lived. On Friday, about August 11th, Mack Nave passed Beck's house and watched the house with unusual and unnecessary intentness, according to the statement of Beck; the mules disappeared that night. On Sunday, two mules with halters on, answering the general description of Beck's mules, were seen in Willis Nave's pasture. It was suggested to Mack Nave that they had better be driven out; he said, "Let the mules get out the way they got in." The witnesses who saw those mules couldn't tell whether they were fastened up by halters or not. The defendant, Mack Nave, was in the neighborhood of Protem at the time the mules were stolen and, according to the testimony of his brother, he stayed all night at Perry's house on that night, and remained there until noon the next day.
Wayne Moulder, who sold the mules to Stone & Hesterlee two days after they were stolen, was a farm hand in the employ of Willis Nave. When he brought the mules to Ozark he was riding a mule which belonged to Willis Nave; Mack Nave, the defendant, told some of the witnesses that he loaned Moulder that mule to ride Sunday night.
As soon as the mules were recovered the defendant was arrested by the Sheriff of Christian County and taken to Ozark. On the way the sheriff stopped at Sparta, in Christian County, where he told his prisoner that he would have to take him before a justice of the peace. He explained to Nave that he would have to have a preliminary trial or else waive it. The defendant did not seem to understand that he would have to go through a preliminary trial, and after further explanation, he said: "Well, I guess I just as well plead guilty." Other witnesses heard him make the statement in connection with a preliminary hearing. No objection was made to that evidence. The next morning after he was taken to Ozark, his father, Willis Nave, having ridden all night to reach Ozark, appeared there and paid Hesterlee $ 207, the amount the mules had cost Hesterlee, with the expense. Hesterlee said he thought after that transaction the matter would be dropped. Beck then took the mules home. Wayne Moulder disappeared about the time the mules did and was not seen in the neighborhood afterwards.
On Sunday, when the mules were seen in Willis Nave's pasture, the place was in charge of one Norman Combs who, it seems, had rented the place. He knew the mules referred to did not belong to Willis Nave. Some other facts are mentioned in the evidence, tending to show the movements of Mack Nave and Wayne Moulder in the neighborhood Saturday and Sunday after the mules disappeared from Beck's place.
When Willis Nave was on the stand and recalled by the defendant in rebuttal, he was asked this question:
"I will ask you if you didn't have a conversation with Norman Combs in which you said, 'Aint this a good get off?' and he said, 'Yes sir, it is,' and you said, 'What do you think of this?' and he refused to tell you there before the family, and out in the field the next morning you asked him again, 'What do you think about this?' and you told him that you thought Mack had taken the mules?"
The...
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