*1 TERM. 1922. OCTOBER Yol. 296].
State v. Barker. of similar conclusively rifles to show nothing kind not in case make pattern any would No was shown mark shell. act the defendant upon a any indicating guilt.- time dis- the defendant is reversed and The judgment C., absent. concurs; Reeves, charged. Bailey, G., opinion PER White, foregoing CURIAM: —The ofAll the court. as the adopted C., be re- should thinks cause Walter, J., judges manded. Appellant. BARKER,
THE STATE v. JOHN Two, 1922. December Division Larceny: Burglary An Conversion. Intent: INDICTMENT: 1. burglariously feloniously charging that defendant indictment garage an automo stole therefrom broke into bile, entered the lar not also it does is not defective because .that ceny .convert the au intent to was committed with felonious of the owner. the- consent the taker’s" use without tomobile to is not en- Collateral Matters. The IMPEACHMENT: impeach for the State a witness who offer to to titled relevancy having only matters to collateral testified has trial. issues on Subsequent Larceny: Burglary and Defendant’s INSTRUCTION: Presumption. giving for the instruction of an Possession: they telling jury find from the if automobile certain and entered and broken certain recently therefrom, thereafter said “and that' stolen defendant, possession the circum- found character were of such connected stances explanation possession, and of his an of him to demand explanation in manner consistent' with such to make failed person presumed broke and innocence, be the automobile, then he is presump- such and stole such entered / repelled by against overcome or him.unless be conclusive will MISSOURI, SUPREME COURT OF evidence, and adduce the evi- the burden is on the defendant repel your reasonable dence overcome repelled by satisfaction, overcome- *2 unless State,” error, view is reversible of the decision State Swarens, wherein rule announced State v.
v. 294 Mo. Kelly, cases, disapproved. 73 Mo. numerous Appeal from Circuit SJcinker, Greene Court.—Hon. B.G.
Judge. AND REMANDED. REVERSED for
Hamlin & Hamlin (1) fatally The indictment it defective, larceny not does “that was committed with the felonious intent to convert to the taker’s own use ’’ without the owner. consent State Goehenour, v. Gray, 690;
225 W.
Mo. 464;
S.
v.
37
v.
State
Ruth-
State
131;
152 Mo.
Waller,
State
174
erford,
518;
v.
Mo.
State
13;
Littrell,
v.
170 Mo.
State v.
228 Mo.
Zehnder,
327;
(2)
Swearengin,
v.
Yol. Attorney-General, Mil- Barrett, Albert Jesse W. Attorney-General, respondent. ler, Assistant grand charges (1) the crime The information language sufficient. the statute and is Swearengin, v. Sec. R. S. Hodges, 234 v. S. Jones, S..W. Hodges, Huff- 1000; State
790;W. 237 W. S. (2) 242 W. Akers, 238 S. man, giving The arising the inference of an instruction which treats proof property as a of stolen proof guilt casting presumption burden of rebut is reversible error. deposition (3) Swarens, only Its effect Callentine was excluded. impeach irrele- witness collateral, *3 a for State on Lippincott, immaterial matters. Trauerman vant and Harper Ry. Iron Moun- Mo. Matthews, tain Murdock, Bank Wojtylak Co., Mo. Tla-Koo- v. Coal Mo. yel-lee 23 R. L. States, v. United 167 U. C. (4) appearing in Instruction in2, the treat- For prop- recent inference from of stolen the light erty law, we in the submit, of as Case, the Swarens the in Banc Court judgment in the should reversed the and for trial. remanded new cause jury grand November 30,1920, C. On the
RAILEY, County, Missouri, returned into the criminal Greene county jointly charging ap- indictment, court of an said pellant burglary with and one Callentine and lar- alleges ceny. July County 17, 1920, at on It appellant Missouri, and State said and Greene Callen- feloniously burglariously en- into, tine broke Hargis, of one Sam and stole there- tered, from Dodge automobile of the value of $1200, one Hargis. April personal property said 4,1921, Sam On SUPREME COURT OF MISSOURI, separate a severance was ordered, and trial awarded change granted him A venue was Judge Judge Patterson; Orin H. C. Skinker of 18th Circuit called in, Judicial was and tried said case. jury, whom On June before following into tried, returned court verdict: jury, guilty find the defendant “We, John Barker charged in the indictment and.assess his imprisonment punishment penitentiary years; guilty term of two we find the defendant not burglary. “ J. W. BkowN, Foreman.” judgment, appel- rendered The court and sentenced lant, accordance the terms of said verdict. From appealed judgment to this court. appears
It from the State’s evidence that Sam Har- gis, July Springfield, lived at 17, 1920, Missouri, and Dodge of a the owner automobile of the value $1000; that the afternoon of last named date, he Cemetery, drove said National car returned returning m.; about 6:30 that on home, drove said garage, into and locked the latter with a padlock; morning, common next he discovered gone; machine putting that said that after the car on the above date,'it was left there; heavy protected bar garage, back door of said padlock. door was locked front as above stated awith Hargis, testifying, said his car a curtain on the left-hand corner back where the bottom *4 large patch put by been torn out, had Weber; on same Mr. placed said car had fifteen that secret marks by thereon the Anti-Automobile-Thief Association; that said marks were drilled into the etc.; car, that he next gone saw said car where he Texarkana, had answer telegram police place; from the to received in that that after the car had been stolen, it was discovered at Clarks- ville, Texaé, of one Clark; that after Hargis his Texarkana, identified sold he VoL TEEM. 1922. OCTOBEE Barker. place; auto- toit one that Bowden at that before Hargis, property mobile identified as the appellant, gave Moore, by his name as had been sold business one in the automobile Jack who was Eachael, gave appellant man who Texarkana; that bought this his name from whom Eachael Moore, same car.
Appellant he was behalf, that testified in own thirty-six years age Springfield, Missouri; and lived at County gambling, that he had been fighting convicted Greene weapons; acquainted carrying that he was June, with the middle Eachael; that he met him about College Kentucky Street; that at Saloon, 1920, tall there was with fellow the time, Eachael at. Thorp; about name he with the latter talked buying Thorp going a Ford he told car; he was Thorp buy him not to one, so; do was advised get what told him he a Buick for would could bought (appellant) pay for a that he Ford; Sam Ford; that he not break into did Hargis, July and take the automobile question; belonging never a car took July Hargis; Eachael that he not sell a car to about did Texarkana; at that he never sold 26th, 1920, 25tk or dealing with car; that he Eachael Eachael any time.
Appellant tending show that July, 26th not at on the 25th or he-was Texarkana bought Hargis Eachael when it claimed car from ' may other matters disclosed record, Suck opinion. important, will be considered deemed assignment Appellant I. brief of errors sufficiency challenges the of the indictment in this case, ground not “that on the that it does felonious intent to it.” was committed convert (automobile) the consent ‘‘to taker’s own use without *5 SUPREME COURT OP MISSOURI, v. Barker. own er." support above con In
indictment. rely cite, counsel tention, upon, the case of Gochenour, recent S. W. (Mo.) in court. other earlier cases 690, and some this been in over has, Gochenour Case direct terms, respect by this to the above as matter, ruled following will be seen reference cases: (Mo.) 660-1; Huff Akers, S. W. (Mo.) Hodges, man, 238 S. l. c. W. (Mo.) (Mo.) l. c. 225 S. l. Jones, W. c. 899. upon
.The indictment is based Revised Section under Statutes declared above law as sufficient, authorities to both form substance. Appellant assigns II. action deposition excluding trial court Callen- _ jointly appel- , , tine, who was indicted with Impeachment. deposition lant. This was offered m evi- purpose impeaching for the dence Jack. who Rachael, réspect as a witness for the State, testified relevancy collateral which had matters to the issues appellant’s on trial in case. Defendant offered in evi- testimony dence the of several witnesses contra- regard material matters! dicted Rachael He was general permitted' repu- likewise that Rachael’s show Appellant’s bad. counsel tation, etc., undertook to deposition, .'among show Rachael, Callentine’s things, Springfield, other told him while at Missouri, (Rachael) stealing he been “had cars around Tulsa.and Oklahoma,” etc. The settled Bartlesville, rule is well may impeached, State that a witness be show- reputation general veracity, for truth etc., may impeached, proper is bad. He where a founda- by showing contradictory made laid, has respect material statements issues in the case, but as that to be shown offered from the deposition relating solely to collateral mat- Callentine, Yol. OCTOBER TERM. 1922. . *6 of
ters, was excluded from the consideration jury. (Mo.) 105-6, v. S. l. c. [State Lasson, 238 W. Wojtylak 288- cited; and Coal l. cases v. 188 Mo. c. Wright City, Kansas 187 Mo. l. 86 S. W. 692-3, v. c. Hamburger v. Roe Bank Mo. l. c. Versailles, 167 Rinkel, Gesell, . l. c. v Mo. l. v. c. 109 Mo. l. c. State 535-6; State v. Houx, 96 Mo. l. c. L. Parker, 613-14.] 28 R. C. sec. 202, by III. It insisted instruction is given by two is numbered the court erroneous. It con- separate, paragraphs, tains a number unnumbered but - appellant’s the criticism of counsel is leveled at portion of instruction reads as said which follows: you
“If find evidence that the Hargis entered and broken and a certain recently automobile stolen and there therefrom, after automobile was found of the defendant, that the circumstances and connected possession, possession, first when found such were of explanation such a character as to of him an demand possession, explana make such failed to a manner consistent with his then ishe innocence, presumed person to be the both broke and entered presump such and stole such this against tion will be or conclusive him unless overcome repelled by evidence, the burden is on the defend repel ant to adduce evidence to overcome presumption- your reasonable unless over satisfaction, repelled come or State.” Kelly, In 608, decided in quoted part approved above of the above instruction was to be continued the law this May year, majority until of this when a Court of our in Banc announced a rule of law different following. Swarens, Mo. legal conclusion reached has, Swarens Case Kelly effect, overruled the and all other Missouri Case, MÍSSOUEI, SUPEEME COUET OF Hayes. including to and cases the same subject, up decisions numerous l. c. where Weiss, 219 S. W. and followed. this court were cited At- Case, the In ruling of the Swarens view case torney-General and his assistant concede giv- remanded on account should he reversed and in the form aforesaid. instruction pointed out, On account heretofore trial. White a new and remanded for reversed GG., Beeves, opinion Eailey, PER CURIAM: —The foregoing All adopted the court. C., hereby *7 of the judges alias
THE H. HAYES, D. MANUEL, STATE v. JAMES alias Appellant. HENRY HUBBLE, Two, December
Division Discharge: Forgery: JEOPARDY: Variance: Possession FORMER single count, Forged charged information, Draft. A former forged sight name of M. J. Miller to defendant had check, or and at the trial evidence showed that draft cashier’s signed instrument, M. J. Mills been and on the name entered, prosequi variance a nolle was account jury discharged. and the Thereafter consent of counts, forgery information, charging present in two the first degree, charging hav- defendant with second second defraud, forged sight possession, draft with intent in his check, filed, plea and defendant entered in bar. cashier’s forged upon instrument, were based Both informations than had cashed at a bank other the one which which drawn, plea overruled, having and his bar was en- acquitted plea guilty of not the first count téred information, Held, on the count. convicted second second present and the second count of informa- information necessarily different, charged entirely different of- are tion fenses, plea in bar was overruled. and the