262 Mo. 158 | Mo. | 1914
The evidence upon the part of the State tends to establish the following facts: About 2 p. m., on the 22d day of November, 1912, a sandy-colored hog, weighing over 200 pounds, the property of one Joe Hampton, was found dead in front of Hampton’s residence
“Well, I had been over at Terry gathering my, crop; it was the 22d of November when I got done, so I tried to get a wagon from Mr. Winslow and Mr.*162 Johnson to take my corn home before they cnt the ditch — this ditch was going to be cut on the 25th of November and then I couldn’t get my corn to my home without going four or five miles out of the way, so I had started to Wardell to borrow a wagon, so I met Louis on the way as I was going to Wardell and he had a shotgun and I says, 'Now, you fellows take the horses and I’ll go through the woods and kill some squirrels,’ and I went on through the woods and they taken the horses, and I .had killed a couple of squirrels and as I was going along the road I saw another one run across the road and it run up a tree and I run around the tree to shoot it but I couldn’t see anything of it, so a little noise attracted my attention, I guess thirty or forty steps away, and I thought I saw the squirrel and I blazed into this place and this hog raised up and squealed and run off; I didn’t know the hog was dead until two or three days after that, and when I found out that the hog was dead I offered to pay for it; I come on by there to see him but he wasn’t there; I sent Louis there two or three times to pay him for the hog and he said that it was all right.
“Q. What did you think you were shooting at at the time you shot this hog? A. I thought I was shooting at a squirrel.
“Q. What color was it? A. I thought it was a fox squirrel.
“Q. What was the color of this hog? A. Kind of a red — brownish.”
The evidence shows that defendant killed the hog, which was the property of another. It is true that there is not direct or positive evidence that he wilfully
The correct rule with regard to the sufficiency of the evidence is stated by Faris, J., in the case of State v. Concelia, 250 Mo. 411, l. c. 424, as follows:
“Where there exists upon the record, what has' been rather loosely called any ‘substantial evidence’ of the existence of a state of facts legally required to be shown, it is our duty to relegate the determination of controverted questions to the triers of fact. ‘The rule is, that before this court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence, or it must be so weak that the necessary inference is, that the verdict is the result of passion, prejudice or partiality.’ ”
We have examined the instructions given by the court and find the same to be free from any error that would work a reversal of the case. Neither does any error appear upon the record proper. It appears that
The foregoing opinion of Williams, C., is adopted as the opinion of .the court.