The State v. Standifer

• Decision Date: 20 December 1926
• Docket Number: 27474
• Parties: The State v. Frank Standifer, Appellant
• Court: Missouri Supreme Court

289 S.W. 856

316 Mo. 49

The State v. Frank Standifer, Appellant

No. 27474

Supreme Court of Missouri

December 20, 1926

Appeal from Boone Circuit Court; Hon. David H. Harris Judge.

Affirmed.

Don C Carter for appellant.

"The court erred in giving Instruction 2, on the part of the State." State v. Whalen, 294 Mo. 139; State v Bennett, 297 Mo. 190; State v. Tracy, 294 Mo. 372; State v. Wagner, 252 S.W. 695; State v. Sexton, 262 S.W. 63.

North T. Gentry , Attorney-General, and Geo. W. Crowder, Assistant Attorney-General, for respondent.

The giving of Instruction 2, which declares that recent exclusive possession of stolen property raises a presumption that the possessor is the thief and puts the burden upon him to repel such presumption, has been condemned by this court as reversible error ever since the Swarens case, decided in 1922. State v. Swarens, 294 Mo. 139.

OPINION

Blair, J.

The information charged appellant with the felony of stealing chickens in the nighttime, in violation of Section 3314, Revised Statutes 1919. The jury returned a verdict of guilty as charged and assessed the punishment at a fine of two hundred dollars. After unsuccessfully moving for a new trial, appellant was sentenced on the verdict and was granted an appeal.

The statement of facts made in appellant's brief is sufficient for the purpose of this opinion. We quote it as follows:

"The evidence on the part of the State tended to show that Fred Gibson and wife live about a mile and one-half northwest of Centralia, Missouri, and that on the 20th day of June, 1925, they drove into Centralia, between eight and nine o'clock that night, to buy their groceries for the coming week, this being Saturday night; that when they returned home that night, between eleven and twelve o'clock, they discovered that some of their chickens had been taken from their chicken house on the premises; the next morning, Sunday, they drove into Centralia and went around to the poultry store or house of Tom Gorman, and there found certain chickens which they identified as being the chickens taken from their chicken house the night before; the men in charge of the poultry house on that Saturday night testified that the defendant had sold these chickens to them on the night in question, sometime between eight and nine o'clock. There was also considerable evidence offered as to the identification of the chickens by the Gibsons; the poultryman, Gorman, gave the chickens to Gibson and wife, who took them home, and there was evidence as to how the chickens acted when placed in the chicken yard of Gibson. There was also evidence offered on the part of the State that a Ford car, shown to be like one the defendant owned and drove, had been standing out in the public road near Gibson's residence, about the time the chickens were alleged to have been taken.

"The evidence on the part of the defendant tended to show that defendant was a farmer, living several miles southeast of Centralia, on a 480-acre farm belonging to his father; that his family consisted of a wife and four children, and that he had at the time of the trial over a thousand chickens -- was considered a chicken-raiser on a big scale in that vicinity; that on the day in question he took his wife, a Mrs. Grimsley, a Miss Thompson, and his four children to Centralia, in his Ford car, leaving home about 6:30 or 6:45; that when he got to Centralia he let his wife, Miss Thompson and the children out, but took Mrs. Grimsley on out to her grandmother's (Mrs. A. L. Hulen), who lived about one-half of a quarter of mile from the residence of Gibson, the prosecuting witness; that he came back home, passing the witness Gibson and wife on the road, as they (Gibsons) were on their way to Centralia, and got some chickens out of some coops that his wife had put up to be sold, put them in some sacks and brought them in to Centralia and sold them at Gorman's poultry house; that he then went on out to the show grounds to the show, after first paying up some bills at the stores; defendant denied ever being on Gibson's place and of course denied any connection whatsoever with the theft of Gibson's chickens; defendant was corroborated in toto by a number of witnesses who saw him on the road when he went after the chickens at his home, and who saw him while at home, and also saw him on the road from home to town -- in short, defendant proved a perfect alibi. A great number of witnesses testified as to the defendant's reputation for truth and veracity and good citizenship -- in fact the State did not controvert this fact whatsoever. The State did not offer any evidence in rebuttal."

If the chickens sold to Gorman were the chickens stolen from Gibson, appellant had possession of the stolen chickens immediately after they were stolen. If the jury found that the chickens sold by appellant were the stolen chickens, that finding necessarily was a finding that appellant had not satisfactorily accounted for his possession of the recently stolen chickens. Therefore, the identity of the chickens was really the vital question in the case. Their identity as the stolen chickens having once been established, all other questions of fact in the case were easily resolved. Not only did Gibson and his wife positively identify two of the chickens -- one because it was a pet and the other because of a peculiar way in which it carried its head, due to an injury -- but there was evidence showing that when the chickens were returned to the Gibson premises they gave every indication of being at home and were treated as members of the Gibson chicken family by the remainder of the flock. There was positive testimony that the chickens identified at and taken away from Gorman's poultry house by Gibson were the same chickens purchased by Gorman from appellant on the very night that Gibson's chickens were stolen.

There was, therefore, substantial evidence tending to show the guilt of appellant. The jury believed the evidence offered by the State, rather than the evidence offered by appellant. Its verdict is well supported by the evidence and cannot be disturbed, because of alleged insufficiency of the evidence.

Appellant has made but one assignment of error in his brief and that is that the trial court erred in giving Instruction 2. Counsel asserts that many other errors were committed, but contends that the giving of Instruction 2 was such manifest error that it is useless to bother this court with the consideration of other alleged errors.

This offense is alleged to have been committed and the trial occurred since July 9, 1925, when Laws of 1925, page 198, Section 4079, became effective. Said Section 4079 reads as follows:

"The motion for a new trial shall be in...