209 Mo. 288 | Mo. | 1908
At the June term, 1906, of the circuit court of Boone county, the grand jury returned an indictment against the defendants, charging them with stealing fifty chickens of the value of twenty-five dollars, on the night of April 28th, 1906, the property of one Henry Baumgartner, from the messuage of the said Henry Baumgartner. At the October term, 1906, the defendants were tried and convicted and the punishment of each assessed at a fine of twenty-five dollars. After ineffectual motions for a new trial and in arrest of judgment, the defendants have appealed to this court.
The evidence on the part of the State tended to prove that Henry Baumgartner, the prosecuting wit
On Saturday, the 5th of May, 1906, these two defendants drove a wagon from their residence, some seven miles, to Millersbnrg, and stopped at the store of Waters & Coons in that village, reaching there about sun-up, and a clerk named Selby came out to see what they wanted, and the defendant Johnson asked if the firm would buy any chickens; when told that they would, defendant sold him between forty and fifty Barred Plymouth Rock chickens at eight cents per pound. Three of the chickens were darker than the rest and one of the hens had a streak around her neck. Defendant Johnson said they were going to Pulton to take these chickens to his mother, but as it was raining’, he did not want to go .in the mud. A check was written out in payment of the chickens and given to Johnson. After the clerk Selby had left the store, defendant Estes bought a nickel’s worth of tobacco from Mr. Coons,
The defendant Johnson had a conversation'with C. C. Gillespy, in which he said he did not want Gillespy to say anything more about this chicken business; whereupon Gillespy said it was public talk in Millers-burg; whereupon Johnson said, he bet a dollar with Estes that it would not make any trouble if they took these chickens to Millersburg and that Estes won the bet. This conversation was on the Saturday that the two defendants were arrested.
On the part of the defendants the evidence tended to show that they had purchased a mixed lot of chickens about the 2nd or 3rd of March, when they moved to the farm where they were living, some of which were Plymouth Rocks, from one Janies Finley, who had previously lived on the farm to which they moved. Matt Turner, an uncle of the defendant Estes, testified there were thirty-five chickens in the lot- purchased by Estes of Finley. William Mitchell also testified that he sold defendant Estes two dozen Buff Plymouth Rocks the spring that he moved onto the place, and William Johnson testified that he sold him a dozen Barred Plymouth Rock hens. This witness was a brother of the defendant Buck Johnson. The father of the defendant Estes testified that the mother and sister of the defendant Estes let him have five dozen Plymouth Rocks to take with them when they moved to the Turner place in the spring of 1906. Defendant Estes further introduced evidence tending to show that he was at the Harg post-office until eleven o’clock the Saturday night on which the chickens were stolen. Both defendants testified
Reese Estes, the brother of Richard, testified that he stayed all night the night of April 28th, 1906, with the defendants at their home; they were at the store at Harg until eleven o’clock, and then went to their place; he slept in an adjoining room to them', the door was open between the two rooms and they went to bed about the same time, he talked to them after he had laid down; he found them there the next morning about (8 o ’clock when he got up.
Defendant Richard Estes testified that when he went to take charge of the Turner farm in March, 1906, he took about 135 or 140 chickens that he had gotten from different people, some from Mr. Mitchell and some from Mr. Perkins, Johnson and Finley. He had sixty Barred Plymouth Rocks and thirty-five Plymouth Rocks and Leghorns from Finley. He got one dozen Wyandottes from Perkins, and he had hired Johnson to work with him on the farm; he had not paid him on the first of May and he told him to get as many chickens as he wanted; he paid him for his month’s work in chickens; he was to pay him $14 per month. Johnson said he wanted to go to Fulton, and when they got as
Defendant Johnson corroborated Estes as to the trip to Fulton and what occurred at Millersburg. As to the conversation with Baumgartner, he stated that he told him that he had heard some talk that they had stolen the chickens, and he did not think it was right, for his mother would think he was stealing chickens for a living. He spoke to him because he heard he .was telling this story and he wanted him, to stop> talking it. On cross-examination, he stated they did not sell any chickens to Finley at Harg. He stated that he had never been to one of the stock sales at Fulton. The reason they started to Fulton on Saturday to be there on Monday was that he thought by the time the sales commenced, he could go over the town, he wanted to see it. He was to pay Estes’s expenses for going with him. He denied the conversation with Baumgartner as to his requesting the latter to wait to see Estes before he took any steps.
Richard Estes, Sr., testified that Baumgartner told him the chickens were taken away in a two-horse wagon; that they saw the tracks near the house where the team was hitched.
In rebuttal the State offered C. W. Martin and L. W. Berry and M. Y. O’Rear, who was a clerk for Mr. Martin, who testified, that that firm bought of R. J. Estes in the latter part of the winter and spring of
In surrebuttal the defendants offered Reese Estes as a witness, and he testified that his name was Reese James Estes, and that he had sold chickens to Martin and to Berry, and that his brother, the defendant’s, initials were R. B., and that he had sold chickens to Martin and to Berry and received the check payable to himself ; did not remember how many checks he took; would not say that his brother did not sell Mr. Martin or Mr. 0 ’Rear any chickens in March or April. He could not remember the amount of any check .he had gotten for chickens that he had sold to Martin- and to Berry. Richard Estes, Sr., testified that his wife raised a great many chickens and sold chickens and eggs every week, sent them to town sometimes by Reese Estes and sometimes the girls would bring eggs. The defendant Richard Estes recalled testified that he was not the man that delivered the chickens to Mr. O’Rear and Martin and received the check, did not think he ever took any chickens to Martin and 0 ’Rear. He stated that he had
I. This prosecution is bottomed on the Act of March 18th, 1903, which makes it a felony to steal any domestic fowl or fowls in the night-time from the messuage of another or from the premises upon which the dwelling house of another is situate. [Laws 1903, p.' 161.] The instructions of the court are not challenged save and except the refusal of the court to. direct a verdict of aeguittal at the close of the evidence. The defendants rely upon three grounds for a reversal of the judgment. The first two grounds are in effect the same, to-wit, that there is no substantial evidence to support the verdict, and the third ground is that the court erred in refusing to grant a new trial on the ground of newly-discovered' evidence. The evidence upon which the defendants were convicted was circumstantial and the court instructed the jury that the State depended upon circumstantial evidence to. establish the crime and to identify the defendants as the ones who were guilty. “And in such case, you are instructed that all the facts and circumstances relied upon by the State as establishing the perpetration of the crime and the identity of the defendants as the ones who perpetrated it, must be consistent with each other and with no other rational conclusion than that a crime was in fact committed, and that the defendants are the persons who committed it. To warrant a conyiction on circumstantial evidence, each fact necessary to the conclusion sought to be estaR lished must be proved by competent evidence beyond a reasonable doubt, and all the facts necessary to such
The larceny of the chickens on Saturday night, April 28, 1906, was fully established, not only by the testimony of Baumgartner and his wife, but by the statement of Estes to Baumgartner that he knew when the chickens were taken; that they were taken on the 28th of April, and were sold on the 5th of May; that he knew all about it, but he did not get the chickens, and he described the chickens fully to Baumgartner; he said they were nice Plymouth Rock chickens, except the light hen with a mingled neck, and he made to Baumgartner the very damaging statement that when he and his codefendant Johnson were on their way to sell the chickens in Millersburg, he told Johnson as soon as Henry Baumgartner finds out that we sold chickens in Millersburg, “he will be on us,” and the defendant Johnson supplements this statements with his evidence to the effect that they entered into, a bet that they would be accused of stealing the chickens if they took them to Millersburg and sold them, and that he lost the bet. Not only did Estes go to Baumgartner and indicate his suspicion or solicitude as to being charged with the theft, but defendant Johnson also went to Baumgartner and showed great eagerness in getting the report stopped and requested him not to do anything until he could hear from them, concluding his conversation on the subject by saying. “We will make it all right
II. Defendants insist they ought to have a new trial on the ground of newly-discovered evidence. Tom Winiger, a witness for the State, testified that he and defendant Estes went home together on the night the chickens were stolen; they left Finley’s store at Harg after ten o’clock and parted about one and a quarter miles from Winiger’s house. Next morning the witness was in the pasture to defendant’s farm with a brother of witness, George Winiger, and Carl Frazier, Kent Sisson and Charles Arnold; the defendant rode
“State of Missouri, County of Boone, ss.
“Richard Estes and Buck Johnson, defendants iu the above-entitled cause, make oath and say that all the statements and averments contained in the twelfth reason above for granting a new trial on account of newly-discovered evidence are true.
“Richard Estes,
Buck Johnson.
“Subscribed and sworn to before me this 22 day of October, 1906.
“Hugh M. Hall,
Clerk Circuit Court,
by Jas. E. Boggs, Dept.”
The twelfth ground in said motion is as follows:
‘ ‘ 12. Because since the trial of this cause defendants have discovered new evidence, which is material to their defence and is not cumulative merely, nor merely serves to assail or contradict or impeach the credibil*306 ity of a witness and which said evidence is fully set forth in the affidavits hereto attached and herewith filed and herewith made a part of this motion. That said evidence is so material that it would probably produce a different result if the new trial were granted. That it was not owing to want of due diligence that said evidence did not come sooner. ’ ’
This court has on different occasions approved the rules laid down in Berry v. State, 10 Ga. 511, in respect to new trials on the ground of newly-discovered evidence, to-wit, “that the evidence has come to the knowledge of the applicant since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result- if the new trial were granted; fourth, that it is not cumulative; fifth, the affidavit of the witness himself should be produced or its absence accounted for; sixth, that the object of the testimony is not merely to impeach the character or credit of a witness.” [State v. McKenzie, 177 Mo. l. c. 716, and cases cited.]
Tested by this rule, we think the motion was properly overruled. It is obvious that the proposed evidence would only have the effect of impeaching the State’s witness Winiger, and would be merely cumulative of the testimony of defendant Estes on that point. Moreover, defendant on the stand testified he knew or heard before the trial that Winiger would be a witness and would testify about defendant looking sleepy and yawning the next morning after the larceny of the chickens. He corroborated Winiger as to the meeting in the pasture next morning and as to the presence of the other witnesses, all of whom lived in the couuty, and yet he had taken no steps to have any of them subpoenaed. Neither is it probable that if the two new witnesses had been produced it would have changed the result, as they could only have testified
We think no error was committed in refusing the new trial on this ground.
The judgment is affirmed.