The State v. Wiseback

• Court: Missouri Supreme Court
• Writing for the Court: Sherwood, J.
• Citation: The State v. Wiseback, 40 S.W. 946, 139 Mo. 214 (Mo. 1897)
• Decision Date: 11 May 1897
• Parties: The State v. Wiseback, Appellant

40 S.W. 946

139 Mo. 214

The State v. Wiseback, Appellant

Supreme Court of Missouri, Second Division

May 11, 1897

Appeal from Shannon Circuit Court. -- Hon. W. N. Evans, Judge.

Reversed.

Withers & Dooley for appellant.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

OPINION

Sherwood, J.

The defendant appeals from a judgment on a verdict which found him guilty of grand larceny, in stealing a certain brown horse, for which felonious equine appropriation he was awarded three years in the penitentiary.

The following agreed statement of facts, so far as necessary to quote the same, is incorporated in the bill of exceptions:

"State of Missouri v. "John Wiseback.]

"For the purposes of this appeal the following are agreed to be the facts: that defendant stole the horse at the time and place charged in the indictment, from the possession of Jas Swiney who had taken up same as a stray and did not know the owner; that an indictment, therefore, was presented by the Shannon county grand jury on the fifteenth day of September, 1896, charging the ownership of said horse to have been in one John W. Hayes; that a trial was had on said indictment on the day of September, 1896, which resulted in an acquittal; that said acquittal was the result of the failure of the State to establish and prove the ownership of the horse as charged in the indictment; that prior to the trial thereof, John W. Hayes was subpoenaed as a witness by the State, but owing to sickness was not in attendance; that had said John Hayes been present and testified at the trial hereinbefore mentioned, the ownership of the stolen horse could have been established and proven to have been in him; that thereafter, to wit, on the day of September, 1896, the grand jury of Shannon county presented a new indictment against defendant for stealing the same horse in which they alleged the ownership thereof to have been in some party to them unknown; that defendant, on the day of September, 1896, filed his plea in bar pleading the former acquittal which said plea was by the court overruled; that to the action of the court in overruling his plea in bar, defendant then and there excepted and saved his exceptions; that defendant then entered a plea of not guilty, and was placed upon trial; that said trial resulted in a conviction, and defendant was sentenced to the penitentiary for a term of three years, from which conviction and sentence defendant prosecutes this appeal."

1. The special plea in bar filed by defendant should not have been overruled. He was entitled to a jury trial thereon, unless he waived it, and this he does not appear to have done. State v. Huffman, 136 Mo. 58, 37 S.W. 797. This matter is, however, discussed more fully hereafter.

2. The bill of exceptions is made out after so poor a fashion, that though it appears in evidence that the State "to sustain the issues upon its part produced evidence to the jury tending to prove defendant stole the horse at the time and place charged in the...