201 Mo. 585 | Mo. | 1907
This is an appeal from the circuit court of Dent county, Missouri. On September 11, 1905, the prosecuting attorney of that county filed an information charging Emory Grubb, Riley Asher and
The testimony on behalf of the State tended to establish that the Sligo Furnace Company was a corporation duly organized under the laws of the State of Missouri, and that it owned a pasture in Dent county, Missouri, which contained 2,700' acres, situated near the town of Sligo in the northern part of Dent county. This pasture was surrounded by a barb-wire fence, and the company was in the habit of taking cattle each year to graze. In April and May, 1904, some three hundred steers were placed in this pasture in charge of James Cooksey as manager and superintendent thereof. Cooksey visited the pasture about three times a week, salted the cattle and looked after the fence. It was his duty to solicit stock for the company for grazing. In April and May, 1904, stock belonging to A. J. Glassey, J. W. Glassey, Ed. Mitchell, Chas. Matlock, Nathan Whites and George Bell was placed in this pasture. Some of these cattle were branded with an O', some with C, some with Q, .some with G, and some with U. They were two years old, three years old, four
J. W. Conway testified that he lived about three miles or three and a half miles from this Sligo pasture in June, 1904, and he knew the defendant Emory Grubb by sight. On the 6th day of June, 1904, a relative of his, Mrs. Arna, was buried, and after the funeral, he was sitting on the porch of his residence, and his wife called his attention to some one coming up the dane with some cattle, and in a few minutes he saw the cattle coming with two men driving them; one of the men got ahead and he did not see him good, but he saw the defendant. They stopped the cattle beside his lot and the defendant stopped and looked at the witness and then motioned his hand to his companion, and they drove the cattle on. This was just after sundown and they were going down Dry Creek north in the direction of Scott Parrott’s. He did not speak to these men, nor they to him, he identified the defendant Emory Grubb as one of the men to • the best of his knowledge and belief. He thought there were something like forty or fifty head of cattle in the drove. They came from a southern direction and were going north, they were travelling on the neighborhood road. He was about twenty-five steps from the defendant and the defendant was on horse back. The other man was some eighty or one hundred yards from him, and was a smaller man according to his recollection.
Mrs. Parrott testified that it was sun-down when the defendants reached the farm with the cattle, and she corroborated her husband’s testimony as to the time the men came and the putting* of the cattle in the pen, and the color and brands of the cattle, and her attempt to trade her cow for the white-faced Hereford cow. She testified to hearing defendants say they must hurry up and get started on the road the next morning, that it would be late before they could get the cattle to the station.. She testified that the defendant Grubb said he tried to stay with a man who was living near the creek, but he could not get to stay there, that at first her husband told him he had better try to get a more convenient place to keep his cattle, but he said he was afraid his cattle would give out. After they got the cattle in the lot, the small man began to stir them around to keep them from lying down, and she asked her son why it was they wanted to keep those cattle on the stir, and one of them said that they had been driven so hard and were so hot that they were likely not to get up if they lay down, and the small man said that they had put in the afternoon rapidly, and had not lost any time. He did not say exactly where they got the cattle only that they bought them from a man over towards the Meramec, and that he was an old Irishman. She' asked them how far they had traveled that day, and
Reuben Parrott, a son of Scott Parrott, testified that he was seventeen years old, and he remembered the men coming to his father’s house on the 6th of June, with the cattle about sun-down, and he corroborated his father’s and mother’s testimony as to the brands on the cattle and their number, and the statement of the defendants that they got the cattle from Corkran. He identified the defendants Grubb and Asher as the men who gave their names at his father’s house as Emory and Brown. He was with them in the lot and saw them at the supper table, and heard their conversation with his mother and father, and saw them at the breakfast table the next morning.
John West, a cattle trader living near Leasburg, remembered seeing forty head of cattle in the stock pens of that town about the 7th of June, 1904; thinking that he might be able to purchase them, he counted them; they were a mixed lot, two, three and four-year-old steers. He said he was well acquainted in Crawford county, and knew almost everybody in it and had never heard of a man by the name of J. D. Emory in that county. These cattle were most of them red cattle and was a good bunch of cattle for that country. He asked the man who was in charge of them where he got them, and he said east of Sligo. After the man said they were not for sale he turned and rode off.
William Clounts testified that he lived ten miles east of Steelville, but in the month of June, 1904, he lived at Leasburg. Sometime about the 7th of June, 1904, he remembered some cattle being brought to Leas-burg in charge of two men, one was a heavy set man and the other was a smaller man. The men came in the store and inquired for some pants, but did not purchase them. They reached Leasburg with the cattle about four or five o’clock; the cattle were a mixed lot and ranged from four years down to yearlings. Some were branded with an 0, and some with brands he took to be horse shoes. He did not count the cattle; he had a conversation with one of the men, who told him that his name was J. D. Emory, and that he got the cattle out south of Leasburg. Witness asked him if he bought some of the cattle from George Ives, and the witness said, ‘‘1 see his brand. ’ ’ Emory said he lived in
G. W. Ives testified that he lived in Steelville, Crawford county, and had for forty-nine years. He testified that he never sold the defendant, Emory Grubb, or a man by the name of J. D. Emory, any cattle.
William Cleary testified that on the 6th, 7th and 8th days of June, 1904, he was the station agent of the ’Frisco Railroad Company at Leasburg, and received word by wire that three cars for cattle were wanted for a man named J. D. Emory. That night about dusk, he discovered that forty cattle had been placed in the stock pens at Leasburg. About nine o’clock on the night of the 7th of Juñe, 1904, the defendant Grubb appeared at the office in the ’Frisco depot at Leasburg and told Mr. Cleary that his name was J. D. Emory, that the cattle belonged to him, and he wanted to sign up-for the shipment. Cleary told him that the cars had not yet arrived but he was expecting them that night on the next train, number 36, between twelve and one o ’clock that night. The defendant Grubb again appeared at the depot and Cleary prepared the written contracts of shipment and the de
E. C. Walls testified that he lived at Leasburg, Missouri, and had lived there about thirteen years, at the time he testified. He was telegraph operator for the ’Frisco Railroad Company -at that point, and was working under Cleary. He identified his signature on the stock contract and also the signature of Emory. Witness asked him if J. D. Emory was his name and he said it was. He asked the defendant what his object was in shipping such cattle to the market and
J. Y. Holt testified that he lived at St. James, Missouri, and in June, 1904, was cashier of the bank at that place.- He knew Emory Grubb and had known him for at least four years. He was asked if he knew one J. D. Emory, he said he did not, but he knew a man who represented himself to be J. D. Emory. A check marked Exhibit G was exhibited to the witness and he was asked if he had ever seen it before, and he answered that he had, that a party representing himself to be J. D. Emory brought it to the bank. He did not think he could describe the man very accurately, but he was a rather tall man, light-complected, with a heavy-mustache, and would weigh 170 or 180 pounds. This man wanted to cash this check and witness told him that he could not cash it for two reasons; one was for want of identification, and the other was that the time lock was on the safe and he could not get at the money before nine o’clock. This man said he could overcome the first objection, and witness told him that would be required and he went out; a few minutes later, he came back with Emory Grubb, the defendant, and Grubb identified him as a stock buyer or shipper, and witness then told him that that was all right, that he would cash the check after nine o’clock. He came in later and got the money and witness placed it to the credit of J. D. Emory. Later J. D. Emory, or the man who represented himself to be J. D. Emory, came in, and the witness’s impression was that Grubb- came with him, and witness counted him out the cash and
“No. 10424......$843.
GREER, MILLS & COMPANY.
Live Stock Commission Merchants.
Kansas City, Mo., National Stock Yards, National Stock Yards, Stock Yards. St. Clair Co., Ill. Chicago.
6-8, 1904.
“Pay to the order of Bank of St. James, Missouri, $843.55 (eight hundred and forty-three dollars and fifty-five cents). The National Bank of Commerce, St. Louis, Missouri. Greer, Mills & Company,
(Signed) “By Wallace Finch.
“Stamped Paid.”
The State then offered in evidence the check marked Exhibit H, which is as follows:
“BANK OF ST. JAMES.
“St. James, Missouri, June 9, 1904.
“Pay to the order of self $843.55 (eight hundred and forty-three dollars and fifty-five cents).
“J. D. Emory.-
“Paid June 9,1904. St. James, Missouri.”
The bond of recognizance given by the defendant for his appearance in this case was identified and offered in evidence for the purpose of showing his genuine signature. Thereupon, the State offered as a witness Mr. E. F. Dent, who testified that he was in the banking business at Salem, Dent county, Missouri, and had been so engaged for four or five years; that part of. his duty was to study signatures and compare hand
W. W. Young testified that he was cashier of the bank at Salem and had been for twelve years, and it was a part of his business to make a study of signatures and handwriting. The signature of the defendant Emory Grubb on the recognizance bond, and the signature of J. D. Emory on the shipper’s contract, were, in his opinion, of the same handwriting or had been written by the same person, and the check was in a different handwriting. The contract between Bell and Whites and the.Glasseys with the Sligo Furnace Company for the pasturage of their cattle for the season of 1904 was offered in evidence.
Thomas Collins testified for the State that in June, 1904, he was in the employment of the defendant Grubb, as a bartender in Grubb’s saloon in St. James; that the defendant Asher frequently visited said saloon, and he was well acquainted with both of them. He testified further that both of the defendants conferred with him about their intention to make some money by stealing some cattle. Afterwards, the defendant Grubb was absent from the saloon and the town of St. James for
On behalf of the defendants, the evidence tended to show that neither of the defendants was in or near Sligo pasture in 1904; that on the 6th, 7th and 8th of June, 1904, defendant Grubb was in St. J ames working in his saloon; that he did not take said cattle nor ship them to St. Louis. Defendant Grubb admitted that on the 9th of June, 1904, a gentleman appeared at his saloon who called the defendant by name, but that he did not at first recognize him; defendant then remembered that he had met this man at the Cuba fair, and that he told the defendant then that his name was
Defendant Grubb further testified that he did not pass Mr. Conway’s on the evening of the 6th of June, 1904, and did not stop at Mr. Parrott’s that evening with a drove of cattle; that he never was at Parrott’s farm, and did not know where it was, and never had any of the conversations with Parrott, his wife and son that they detailed on the stand. Denied that he signed the name of J. D. Emory to the shipping contract, or that he knew who did sign the same. He testified that he had signed the bond for his appearance in court in this case. Denied that he ever saw Mr. Cleary, the agent at Leasburg, or Ernest Walls. He admitted that he knew the witness Collins and that Collins had sometimes worked for him at his saloon at St. James, but denied all the statements made by Collins with reference to the larceny of the cattle.
On the part of defendant Asher, the evidence tended to show that he was living, at the time of the alleged larceny, on a farm fourteen miles from St. James, and that on the 6th of June, 1904, he drove into St. James in a wagon in company with some friends, spent the day at St. James and returned home after dark, and on the next day he rode horse-back, in company with George Grubb, to St. James, and spent most of the day in that town, returning home after dark. There was also evidence to the effect that defendant Asher enjoyed a good reputation for honesty and integrity prior to the commission of this crime. The defendant called a number of witnesses who testified that the reputation of Collins, the State’s witness, for honesty, truth and veracity was bad. Defendant also introduced evidence in support of the alibi of both the defendants.
Herbert Hughes, called as a witness for the de
Mr. Harrison was called by the State in rebuttal, and he testified that in September, 1905, Herbert Hughes stated to him that it was the 5th or 6th of June, 1904, when the defendant hired the horses at Essman’s livery stable.
The State also introduced evidence of the witness Collins’ neighbors, tending to prove that his reputation for truth and veracity in the neighborhood in which he lived was good.
The exceptions of the defendants to the exclusion and admission of evidence will be noticed in the discussion of those exceptions in the course of the opinion.
I. The -circuit court did not err in refusing the request of the defendants to stop' the trial in Dent county and transfer the cause to Crawford county, as may be done in a proper case under sections 2414 and 2415, Revised Statutes 1899. The fact that the stolen cattle were shown to have been in the possession of the defendants in Crawford county did not negative the irresistible inference that they were in the Sligo pasture in Dent county when they were taken by the defendants; all the testimony tended to prove that this pasture was wholly within Dent county and that it was inclosed with a barb-wire fence, which was kept in good
II. There is no merit in the contention that the court erroneously permitted Cleary, the station agent at Leasburg, to relate the conversation he had with the defendant Grubb, in which Cleary asked him why he did not use all three of the ears, and defendant answered that he had three car loads but one car load of the cattle stampeded and got away from him. No ground is assigned in this objection and we have been unable to discover any reason why this evidence should have been excluded.
III. Equally without merit is the point that the court erred in permitting William Corkran and George W. Ives to testify that neither of them sold any cattle to J. D. Emory or defendant Grubb. The evidence had already tended to prove that the defendants had told Mr. Parrott and his son Reuben that he had bought these cattle from Mr. Corkran and had told the parties at Leasburg that he got some of them from Ives. It was entirely competent to show that these statements
IV. Neither was there any error in the action of the circuit court in allowing the State to prove by Mr. Holt, the cashier of the St. James Bank, that he knew all the stock men in that section and did not know any such a man or stock man as J. D. Emory in that region. No reason was assigned for this objection and it might well be dismissed on that account from further consideration, but it was clearly competent in connection with the defendant’s conduct in identifying this stranger as J. D. Emory, when, according to his own testimony, he had never seen the individual but once before and had never been introduced to him, and he did not know him when he appeared at his saloon on the-morning that the draft was collected and in connection with the further testimony of Collins that the defendants had- stated that this stranger was, in fact, named Taylor.
V. Error is assigned on the action of the circuit court in permitting the expert witnesses and the jurors to compare the handwriting on the shipping contract and the recognizance bond with the check signed by the person whom the defendant Grubb identified as J. D. Emory. By reference to the statement, it will appear that when the witnesses Dent and Young were on the stand, they gave it' as their opinion that the signature of the live stock contract, Exhibit E, and the
VI. Again, it is urged that the court improperly restricted the impeachment of the witness Collins to his reputation for truth and veracity and excluded the question as to Collins ’ reputation for being a dead-beat. The record discloses that the court permitted the defendant to impeach the witness Collins ’ reputation for honesty as well as for truth and veracity by a large number of witnesses, and indeed without objection on the part of the State permitted these witnesses to testify that Collins was a man who would not pay his debts and had been accused of stealing and that he frequented saloons and got drunk and gambled. While we think that the court properly excluded the question as to his being a dead-beat, the record abounds in evidence tending to show that he had all the characteristics of a dead-beat. There is no merit in this contention.
VII. It is also insisted that the court erred in permitting counsel for the State to travel outside of the record over the objections of the defendants without rebuke from the court. It appears from the bill
YIII. As to the assignment of error based upon Mr. Elmer’s argument, it appears that at the suggestion of the court he corrected two of the statements
IX. While the defendants objected to all the instructions given by the court and to the refusal of two asked by themselves, they have assigned no error on that account in their brief and argument in this court, but we have carefully examined the same and found that they cover every proposition of law arising upon the evidence and leave nothing to be desired. They were as favorable to the defendants as they could ask. Having patiently gone through all of the alleged errors, in our opinion there is no reversible error in the record, and the judgments and sentences of the defendants must be and they are affirmed.