State v. Dudley

| Mo. | Jul 5, 1912

ROT, C.

— Defendant was convicted of grand, larceny in the circuit court of Dunklin county, and sentenced to two years in the penitentiary, and has appealed.

The information charged him with the larceny of “one buggy and one set of leather harness, both of the value of one hundred dollars,” on October 8, 1910. Pie was living on a farm near Senath, in Dunklin county. His father lived near Manila, Arkansas, about sixteen miles south of Senath.

The defendant had purchased eighty acres of unimproved land covered with timber and brush near his father’s, and had cleared away a place to build a house. He had bought lumber in Senath and hauled it in a wagon to his farm. He made a trip with a load of lumber leaving Senath about eight o’clock on Saturday night, October 8, 1910, and passed by the buggy shed of Ben Vardell, which was on the side of the road about an eighth of a mile from Vardell’s house. The evidence tended to show that there were tracks of horses, similar to the tracks of defendant-’s horses, in front of the buggy shed the next morning, and tending to show that defendant’s team had stopped there and that the buggy tracks indicated that it had been tied behind the wagon, and the tracks were such as to show that the buggy had in that way been taken to defendant’s place in Arkansas. It was found in his possession about sixty rods from the public road behind some bushes. Vardell’s harness was in the buggy. The collar was missing. ' '

The defendant testified: That he did not take prosecuting witness’s buggy, but that on the Sunday morning (October 9, 1910), at the State line, or about a mile and a half beyond, he had bought it from a man named Carter whom he met about daylight, for the sum of thirty-five dollars; that he had known Carter off and on for three years, as his business was that of trading horses. He described Carter as a small man with red hair. On cross-examination appellant testified that he had left his home at Senath on Saturday night about eight o’clock, going straight south, passing the prosecuting witness’s home and buggy shed, making one continuous trip from the -time he left home until he bought the buggy the next morning that the place where he bought the buggy was about thirteen miles from his home, and that it took him from eight o’clock the night before to travel from Senath to one and three-quarter miles below the State line; that his horses were between twelve and fourteen hands high, were shod with calks (“corks”) behind and no toes; that he drove on from the place where he bought the buggy to his place, where he unloaded the lumber and came up to his father’s,' about nine or ten or eleven o ’clock a. m.; that it was some ten or twelve miles from the place where he bought the buggy to the place where he unloaded the lumber, four miles south of Manila. On being asked why he did not take the buggy on down to where he unloaded the lumber, he answered, because there were logs scattered around there until he could not get the buggy out of the road, and where he left the buggy it was cleared out and convenient' to get in; that it was an open place with no bushes, although he could not explain why the men could not see the buggy as they passed on the road until he called their attention to it. The place where he left the buggy was about three miles from his father’s, and that he had not left it at his father’s because there was no room there for it, although he had stopped there on his way down. He further testified that Carter overtook him on the road; that he was driving a team of light sorrels to this very buggy; that when he sold him the buggy, he took them out, and that he did not know there was any harness in the buggy at tbe time; that Carter did not say where he had gotten the buggy and that he paid him thirty-five dollars for it. He further testified that he had known Carter at Senath; that he had traded horses with him several times; that there was no one with him when he bought the buggy, and that he had never seen him since; that the last time he had seen him was the fall before that; did not know where Carter lived, and, when asked if anybody was traveling with him, he answered, “No, he seemed to be by himself.” He further stated that he made no effort to find him. He also stated that nobody assisted him in placing the buggy where it was found.

The prosecuting witness testified that the defendant told him that he got the buggy up the road, and that when asked where it was, he said, “it was down the road a piece,” and that defendant also said, “I am here among strangers and I would like for you to take the money and bring the buggy back providing it belongs to you.”

Defendant, in his direct testimony, stated he bought the buggy on the State line, on Sunday morning, on the road where he was traveling from his house at Senath. On cross-examination he was asked about the kind of horses he was driving and how they were shod. There was an objection on the ground that it was a matter not gone into on the direct examination. The objection was overruled and exception taken.

One' of the jurors on his voir dire stated that he had talked with the prosecuting witness about the arrest of defendant, that nothing was said about the facts in the case and that the juror had formed no opinion, and had thought no more about it. Defendant’s challenge of the juror was overruled.

In his opening statement to the jury the prosecuting attorney stated that the defendant at the previous lerm of the court had forfeited his bond and that a requisition was issued for him. There was an objection by defendant. Tbe court sustained the objection and told the jury not to consider the statement. There was no request for a rebuke of the prosecuting attorney, and no exception.

I. The fact that the information charges the larceny of two separate articles without stating the value of each does not invalidate the information when the aggregate value is stated. [State v. Koplan, 167 Mo. 298" court="Mo." date_filed="1902-02-25" href="https://app.midpage.ai/document/state-v-koplan-8014223?utm_source=webapp" opinion_id="8014223">167 Mo. 298; State v. O'Connell, 144 Mo. 387" court="Mo." date_filed="1898-05-31" href="https://app.midpage.ai/document/state-v-oconnell-8012852?utm_source=webapp" opinion_id="8012852">144 Mo. 387.]

II. The challenged juror was not incompetent. He had talked with the prosecuting witness about the arrest of the defendant, but had heard none of the facts as to his guilt or innocence, and had formed no opinion. It was held in State v. Riddle, 179 Mo. l. c. 294, that when a juror had heard a part of the evidence of one witness, but had formed no opinion, he was a competent juror.

III. We consider the statement made by the prosecuting attorney that defendant had forfeited his bond and that a requisition had been issued for him as proper. It tended to show flight on the part of the defendant, which is “evidence of guilt and of a guilty conscience.” Besides, the defendant’s objection was sustained and the jury instructed to disregard the remarks, and there was no exception. Under the circumstances there was no error. [State v. Kullman, 225 Mo. l. c. 632.]

IY. The cross-examination of the defendant as to the kind of horses he was driving and how they were shod was germane to the subject-matter of the direct examination and was proper. He had testified that he had bought the buggy while traveling on the road from his house at Senath. The particulars of that journey were proper matter for cross-examination.

In the case of State v. Bell, 212 Mo. l. c. 122, cited by appellant, the direct testimony was as to one journey and the cross-examination as to another.

Y. The instruction given on the subject of reasonable doubt was full and clear.

The defendant asked an instruction on the presumption of innocence and it was refused. It should have been given, but such refusal is not reversible error where the jury has been fully instructed on reasonable doubt. [State v. Maupin, 196 Mo. 164" court="Mo." date_filed="1906-05-22" href="https://app.midpage.ai/document/state-v-maupin-8015767?utm_source=webapp" opinion_id="8015767">196 Mo. 164; State v. Kennedy, 154 Mo. l. c. 289.]

All the other instructions asked by defendant were fully covered by those given.

We find no reversible error in the record and the judgment is affirmed.

Blair, G., concurs. PER CURIAM.

— The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.