State v. Hill

| Mo. | Oct 15, 1888

Buac®, J.

At the' September term, 1887, of the criminal court of'Saline county, the defendant was convicted • of grand lárcény on an indictment charging him with having stolen a pair of black mare mules from one John J. Hardin in said county. An examination of the record ■ discloses that the'case was'in its details well tried, and the only 'grohiid’ urged by counsel here for a reversal is, that the verdict' is nonsupported by the. evidence,.,and defendant’s demurrer thereto, and his instruction to acquit should have been given. ’

• I. The first defect pointed out is the alleged failure by the state to prove the venue as laid in' Saline county. Hardin, the owner of"the mules, testified that,.at.the time the mules were"stoIen, he was living in Saline county, Missouri, northwest of Slater; that the weather was fair, and that he had been ploughing with the mules ; that they were taken right from the plow and put into the barn about sundown, and that between that time and eleven o’clock that night, they were stolen from the bhrh. "FrOm■ this' evidence’ thé 'jury might reasonably infer that the barn was in Saline county. I-t is not necóssary that the venue be proved by direct and positive.eyiden.ee. It is, sufficient if it can be reasonably inferred from the facts and circumstances proven. State v. Burns, 48 Mo. 438" court="Mo." date_filed="1871-10-15" href="https://app.midpage.ai/document/state-v-burns-8003307?utm_source=webapp" opinion_id="8003307">48 Mo. 438.

. • II. It; was satisfactorily • proved "by the state that the mules were stolen 'on the’night of the, eighteenth'of May, in Saline county; that they were the property of .Hardin, -as ■ .charged, in the indictmentthat' on Sunday, the twenty-ninth of , May, the defendant came to a wagon-yard on Twelfth and Olive streets in the city of St. Louis, in a buggy hitched 'tó a span of black mare mules answering the description as to sex, age, size, form’, color, and as to a' mark on one and á brand ón thé'other of the mnle's"stolen ; that be stayed there with the'mules until the evening of the thirtieth, when hé1 sóld'them to a man named Julian, who afterwards sold them’ tó a man’ named Hill, who took them to St. Paul, after 'which no trace' of the mules was found; -that- the ' défendafit' ásk'ed two hundred and thirty-five dollars; but took one hundred and seventy-five dollars- for’ ■ them;' that upon the same day hé sold the mxiles; he Stripped' the buggy ánd’harness to Brownsville in- Saline county, w'hefe’they arrived on the first of June ; that this was 'defendant’s buggy and that'bn the third of - June fie came for it and took it away.

The defendant undertook to give ho account of his possession of-'the mules’he sold, "saying to the sheriff . who arrested- him-,' “ I guéss yóu must be mistaken in the man!--T was athóhé at that time. I 'háven’ t, been out of the county-except bn'the first of Tune when I went to Sedalia;”'. but'his counsel say they were not sufficiently identified as the' hiulés stolen.' Two. witnesses testified- to 'the desóriptiori1’ of the mules stolen, Hardin ■the owner who raised'one of them, andhis near neighbor Smith from whom he bdught the other. They agreed in their - description.' ’ Three witnesses tés'tified' as to the description - of ’ 'the' mules sold,' all of' whom were acquainted' with' Hill, - but neither of whom had ever, seen Hardi-n’s 'mules' before they were stolen, Julian who bought -the mule's from Hill, McGfary to whom he priced them-at-two hundred and1 thirty-five dollars,' and Wentler, the - yardniaster ■ where' Hill kept them' until they were sold? ’ ; _ .

It is-claimed that the description'given by'the latter three "differs;iñthese three particulars from that given by the- two former witnesses: (a):' Hardin in testifying about the -mule he raised,' said 'she was not so dark as the Smith -mule’'; “ she had a little light on her nose, a mealy fióse;” : the" Smith mulé was darker, with a darker -nose.' Srni'th" testified that the Smith mule’s nose was brown, -the other á little' lighter color, but they made good matches. The witnesses who testified as to the mules sold, gave the same general description of their color as that given by Hardin and Smith, but their attention was not directed specially to any shade of difference that might have existed in the color of their noses, and they said nothing on that subject; (5) Hardin testified that the mule he raised was the larger mule, and that she had a small slit about half an inch long in one of her ears near the top or point, he was not certain in which ear; was under the impression then that it was in the left ear; but in the card offering a reward, issued directly after the mules were stolen, he described it as in the right ear. McG-ary testified that the largest of the two mules the defendant sold had a slit in the point of one of her ears; he thought it was the right ear, it might have been an inch- or an inch and a half long, he was not certain, was not nearer than three feet. This mark corresponds in the testimony of each as to the mule it was upon, its character and location on the ear, but is not certain in the testimony of either as to its exact size or which ear it was upon ; (c) Hardin and Smith testified that the Smith mule had Smith’s brand on the left hip, which was the letter L. Smith, who branded her, testified, ‘ ‘ when I branded her she was wild, and the brand slipped and made a scar that looked a little like a figure 6, but a man who knew' the brand would take it for a letter L.” Julian testified that one of the mules defendant sold was branded on the left hip and gave a description of the brand, corresponding very well with that given by Hardin and Smith, so well that little doubt that they were testifying about the same brand can be entertained. The peculiarity of this mark caused by the slipping of the branding iron, making a figure something like a horse-shoe standing on its toe, the open part up, the left side a little longer than the other, and the right near the end curving a little towards the left, and which was neither a letter L, O, U, nor a figure 6, but might be taken for either as described by the witnesses, while making the brand difficult of description, furnishes very strong eveidence, by reason of its peculiarity, that the mule with such a brand on it that was sold lay the defendant was. the stolen mule that was thus branded.

This evidence we think was sufficient to warrant the court in submitting the question to the jury whether the mules sold were not the identical mules stolen, under an instruction which told them they could not convict unless they so found beyond a reasonable doubt, and in giving the hypothetical instruction given in this case as to the presumption arising from the recent possession of stolen property, and in connection with the other facts and circumstances proven in the case which it is not necessary to set out in detail, is sufficient to support the verdict.

The judgment is therefore affirmed.

All concur except Rat, J., absent.