*1 ground as the considerations, which recited are of several or more illegal, and but not insufficient, only frivolous and be promise, of a undoubtedly the sufficient, considerations then good and are others those disregarded, while severed, which are void and those may be promise.” will sustain the which are valid full for cash of stock at value purchase of the consideration illegal. by no means is is the case re- stated, the cause reversed For the reasons part its to set aside that directions trial to the court’with manded petition, first count of upon the judgment which was final petition, and there- of the first count the demurrer to overrule judgment according law, first proceed upon the count after to third as it concerns second so far stand heretofore entered may rendered judgment final and to abide whatever counts CC., concur. Westhues, Cooley and first count. FitzsimmONS, C., foregoing opinion PER CURIAM: —The concur. All judges court. adopted opinion of the as the (2d) 523. W. S. McGuire, Appellant. Robert The State v. Two, 1931. June Division *2 ÍÍ7S Moberly appellant. &
Barton
Ü7§ *4 Shartel, Stratton Attorney-General, Miller, and Albert Assistant Attorney-General, for respondent. *5 COOLEY, Appeal McGuire defendant Robert from' C.—
judgment County, of Texas him sentencing of the Circuit Court
1182 years’ imprisonment penitentiary a con- two half and larceny nighttime. viction of in the chickens Independently defendant, of a admission confession of verbal or following: Johnson, evidence Trav State’s tended to show the chickens, owner of the stolen defendant lived in and the the conn- try (defendant’s quarter near each other evidence indicates a or apart). August half Friday morning, a On Johnson mile 18, 1929, Saturday family reunion, returning and went to a to their home night, August 19, A midnight. previously about week or so Johnson chickens, They and his finding wife had counted their counted 114. August them on Sunday, 20, and discovered that fourteen about missing. August they eight were the On found and identified 22 missing possession Nelson, chickens in the of’Delbert a merchant the town Twin Hickory, some miles distant. Johnson took “they those right chickens home where went to roost with the other purchased chickens.” had eight Nelson said chickens from morning, August defendant McGuire on Johnson’s Saturday, 19. chickens, including been him these had all raised on eight, his farm steps and roosted in a brooder not over ten house from his dwelling dwelling yard enclosed, inside the which was being house and brooder or hen within house the same enclosure. charge having was arrested Defendant on stolen day them, a or so after Johnson missed before latter had discovered and them at Nelson’s identified store. He was taken Bay Huss, justice before a peace, where, ques- in answer to Huss, tions stating he chickens, admitted that had stolen the “Fbiday had night” eight taken them between and ten o’clock and Hickory morning. had sold them at Twin next He thought eight. said he seven, there were but there have been When having arrested defendant had denied stolen the chickens. eight The value of the chickens was about four dollars. testify,
Defendant did not but called his wife and another witness constantly testified that who defendant was at his from about home morning. Friday Saturday four until His testi- wife further p. M. question any fied that he did not the chickens in bring home or chickens. delicti n Appellant corpus sufficiently
I. contends that alleged proved, proof being there no from his confession that aside time, nighttime; night- i. chickens were that the e.. time, charged an element of the crime essential confession of defendant “the naked commission of a sufficient to establish the crime any foto or essential element thereof.” open
It a not made court is true that “confessions of crime proof committing magistrate aliunde, without or before a a committed, sustain conviction.” crime will not [State has 121, But, and cases Mullinix, S. W. Mo. cited.] proof connection, full as in the Mullinix case further stated *7 independent is re body crime, confession, of the not of the quired of the may slight what seem to be corrobo “but on the contrary, [Citing rule rating been sufficient.” facts have held eases.] delicti, confession, corpus independent of the proof full of the that only in in required established, well this but other is not seems stated, with citation of cases jurisdictions. It is thus numerous (2d) (Mo.), states, and other in State v. Cantrell S. W. from this 841, 839, Skibiski, 459, 463, 245 Mo. quoting from State v.
S. W. 1038: ‘‘ corpus full the long proof in this been that of The rule State has required. If delicti, is there is independent confession, of the the corroborating prove which tend to evidence of circumstances in corpus circumstances related the correspond delicti and with the may be con- confession, the and the confession both circumstances sufficiently determining corpus delicti is sidered whether the proved in given a case.” larceny chickens in prosecution ease a for of
The Cantrell larceny nighttime, proof was committed as to that the presented quite similar that nighttime a situation to less respects instant In other the State’s case was rather case. quoted rule it held
strong Applying than this one. the above corpus con- proof was sufficient to make the that the of the delicti jury say whether fession that it was for the to admissible “and confessions, together, corroborating considered facts guilt, appellant’s minds all doubt of excluded from their reasonable repudiation his considering also his denial of the charge,f tending show an alibi.” confession, behalf and the evidence confession ample In case there was evidence without the this and that finding had been stolen de- a that the chickens authorize shortly very them to Nelson possession was in of and sold fendant last away from home since thereafter. The Johnsons had not been they left prior August 18 until counting their dáytime while likely in the theft It is not reunion. occurred may chickens it they Since defendant marketed were home. naturally purpose and would them for that be inferred that he stole he lived near possible, especially as as dispose of them as soon n owner’s Hickory on Sat- Twin them to Nelson at home. He sold said, too, He part his statement.- urday, which fact corroborates thought there were he from Trav Johnson took them that bought seven, testified he eight. Nelson but there have eight John- were that those defendant, it was shown eight from when defendant testified son’s chickens. Defendant’s wife 1184: p. Friday brought chickens. If home no
came about four m. day likely have them in the would he not he had stolen earlier disposed day? during of them simple ample charge larceny were conceded there was
If the is Stealing corpus delicti without chick- proof of the confession. larceny. nighttime ens in which The time at the offense punishment grade affects the committed offense and therefor, say ingredient prepared but we are not that it is such an independent proof, must con- the offense as that there fession, nighttime feature, theory on the tending to show the ’ corpus delicti, part it is before the confession can be con- sidered. Flowers, charge
In 278 W. State Mo. S. larceny dwelling from a house. As the brief state we understand only opinion proof ment of the evidence case property dwelling was stolen from a house was a statement or *8 by proved confession to have been made the was defendant. There case, evidence, in possession as this the defendant’s corpus recently property after theft. It was held that delicti its sufficiently was shown. corroborating if it
However, that some circum- be conceded case, think, in shown, stances must we as was held the Cantrell case, in in applying that the rule were this as there stated there that, enough corroborating admit the con- circumstances shown to by jury together fession with and to authorize its consideration evidence; all other facts in and that so considered the evidence support sufficient to the verdict.
TT. appellant In his in charges brief here the admission of error ground in evidence of his confession on that it was made response implied promise mitigation punishment, to an and voluntary. n ad therefore t The facts relative to the Scott,
mission of that are: who was with evidence Otto Day Earl when latter arrested constable defendant Hay justice Huss, peace, testified for took him before of the and objection, State, without that defendant said he had first chickens; “All want and taken the that Huss said we the truth truth,” nothing whereupon tell but the. said he would defendant got that the chickens from proceeded and to state he the truth eight night ten at and sold them Tra.v Johnson between and o’clock point to Hickory. defendant’s counsel asked Twin At that developed interrogate justice Huss was the witness, pend- was had and before whom the case who issued the warrant according all witness, when Huss said he wanted ing to and that might was the truth defendant make he also said to it easier on him if he De- nothing would tell the but the truth. truth object being fendant’s counsel then stated: “We to that as an im- proper objection method of The obtaining the confession.” overruled, testimony already given but had and there was motion to no strike it out. Day
Earl preliminary questions was called and after some asked time, to state conversation that occurred at that where- upon objected any defendant “to the introduction of further state- ments as to what occurred that conversation the reason that question given the evidence shows that it was in obedience ato propounded by authority.” objection one was overruled.
Day got eight testified that he from defendant said eight Friday Trav night Johnson between and ten o’clock and sold them Hickory Saturday. at Twin following day, objection substantially
Iiuss was called and testified without defendant, testimony differing same 'Statements of in this viz., quoted respect, saying defendant as he sold the chickens morning, gave Saturday detail, defendant’s statements more giving questions answers, Scott, it was testified that who said to defendant that it would be easier on him if he told he, There any foregoing the truth. was no motion strike out testimony. by will objection
It defendant in the trial be noted made upon grou.nd court was that the statement defendant by (response?) question propounded in au- “obedience one objection thority.” ground urged, There was now no hope, what had been that it was made induced said with if he him, leniently be more dealt confessed. *9 objection stated, ground the and the upon was not sustainable overruling it. charged with error in trial court cannot therefore be through “. . . not the confession was elicited It does matter that ques- that such questions person authority, in of the officer or 292 Hart, v. guilt the tions assumed the of defendant.” [State 74, is 237 473 and cases Neither confession 89, Mo. S. W. the cited.] .(State arrest because the defendant was under rendered inadmissible adjured or Hart, merely was exhorted supra), v. nor because he v. promises being made. speak or truth, to the no threats [State 92, 289 Johnson, Mo. S. W. 847.] 86, objection upon trial the timely the
If defendant had made showing his confession any that ground urges, or made now he presence of the by or the statement made was induced question charge, might have different having him we officers Keller, v. Hart, supra; State v. with which to deal. [State 539, objection was His Mo. 174 W. He neither. 557-8, S. did 67.] the to testify himself to not offer he did ground, that on not prove to offer challenged State’s the he issue when that court way any attempt jury, nor did the confession, or to voluntary. been not had his confession that show call the specific be objections must that settled is well “It the ob- upon which directly ground to the court attention not will appellant settled that is also well made, and it jection is beyond appeal on objection scope of his broaden permitted to 706, 231 Mo. Witherspoon, v. [State court.” the trial made in that 197, 240 W. (Mo.), S. Harlan v. State also See 133 W. 720, S. 323.] 733, 735. 273 S. W. (Mo.), Vanarsdall 201; State v. unnecessary decide it deem we indicated reasons For statement shown circumstances under not or whether truth, to tell on him it easier make that defendant con- to exclude be sufficient would appearing, nothing else suggested. ground now on the made been objection fession had had if he him ask sought to Huss and recalled Defendant III. counsel to consult entitled was defendant informed objections to State’s him. The against might be used what he said That, was made. proof No offer sustained. questions were not ivas If defendant defendant. prejudiced not have ruling could would that fact questions by the suggested information given the Johnson, [State inadmissible. confession made the have not supra.] in- so had that he prove sought to If defendant clearly fact it might consider jury order formed de- informed so he had testimony that apparent from Iluss’s fendant. petit have should submitted Complaint the court made that IV. asked, an instruction larceny. court refused and the Defendant chickens, that defendant stole jury found effect that if the larceny whether the as to doubt a reasonable had daytime, nighttime or been committed had messuage of out” of “in or committed whether it or toas larceny. only petit convicted Johnson, could be defendant Statutes Revised this Section under á case In statute. larceny warrants, value proved, but the e., if the i. if the evidence the, dollars, evi- thirty and under is under property larceny not committed finding that the be a there could dence owner, we messuage nighttime was not from or larceny should petit authorizing a verdict an instruction
think *10 this statute under charging offense an given. An indictment be think larceny. do not But we petit elements all includes larceny prejudiced petit submit court to of the the refusal nighttime becap.se: committed was larceny If the defendant, 1187 it could not have been found under the evidence to have been com- mitted elsewhere than messuage from the of Mr. Johnson. The jury required was find, in convict, order to that the larceny was from messuage nighttime. Appellant’s real conten- tion on this point proved that it was larceny that committed in nighttime. In his brief here he states: “It was theory of the defense day- that the chickens were ’’ time, if at by all this defendant. At request defendant’s jury court instructed the that al- though they should find that “yet chickens, defendant stole the under the law and evidence this they case” could not convict any defendant of crime whatever unless satisfied from the evidence beyond a reasonable doubt larceny that the committed nighttime. That instruction was more favorable to defendant than the one refused, since acquittal it authorized instead of conviction petit larceny if jury had a larceny reasonable doubt committed the nighttime. If it be jury contended that the might have petit convicted of larceny and punish- a assessed lower ifment that offense had been submitted, a answer is that sufficient under the statute in question, though the conviction stealing be from the messuage in nighttime as charged, punishment may be as low as it petit could larceny. be for So from whatever angle the matter be viewed court’s refusal petit to submit larceny v/as not prejudicial to the defendant. Appellant
V. alleges error in giving 3 instruction No. relative to the statements, verbal if any, effect £oun(j by ^ been made defendants. It is substantially copy of Instruction No. 16 given and approved in v. State 152 Darrah, Mo. 522, 530, 541, 54 226, S. W. with ad- ditional direction that such verbal statement should considered jury by the with caution on account liability of witnesses forget or really misunderstand what was said or intended. The cautionary additional direction was favorable to the defendant.' The balance of the in substantially instruction the same form has been many times approved by this court. State Nibarger, [See v. 298-9, Mo. 164 S. W. it usually While unnecessary 453.] approach has been criticized as a near an unauthorized comment (see on the evidence v. Nibarger, supra) State we have never held it reversible error. objection The further require did not jury statements, that the voluntarily should find any, if to have been made is answered v. Simenson, 264, 268, State Mo. holding S. W. unnecessary it is incorporate proposition in the instruction under discussion under circumstances such as shown here. also supra; State v. Nibarger, [See State *11 W. 122 S. 671.] 223 Mo. Wilson, supra; State
Darrah, appellant. against ruled point is The State the for counsel chief in ease their presenting InVI. where toas positive evidence or any direct to introduce neglected circumstances some were There night. at roosted chickens
Johnson’s they that inferred be might it which from shown on evidence but the house, in brooder the roosted rested had sides both After satisfactory. from was far point that case the permitted court the presented had been a demurrer and was Johnson offered. to point that proof on and reopened to be aof roost chickens your do “Where asked: and recalled then brooder in the roosted they that replied which To night?” location, its questions, to in answer describe, to proceeded house, and structure, etc. the permitting in erred court the 'that contention some There discretion in the largely rest matters case, such but reopening of the been have could defendant that perceive not do court, we and that appear not does It case. the of reopening by such prejudiced suggestion no was and there excused been had any witnesses appear might which from circumstance or any fact of defendant offered had evidence if that than more injured might be that he time. proper the Johnson put to questions the that however, is insistence, main The testi- and that tense present the in were recalled he was when time the reference had roosted chickens the where mony as to months six larceny, some the of time the not and trial the of more exercised have well State for Counsel presentation previous. time court saving this thereby case, their of care not arewe B'ut as this. contentions upon such passing labor and a de- affect do not errors technical reverse authorized confident We are merits. on rights substantial fendant’s whole from understood perfectly as well defendant jury and they as enough, describing conditions was witness examination naturally Defendant, larceny. of time at the existed get- thereby and witness cross-examining the risk not did perhaps, referred. to which time statement more definite ting a “messuage” define not did court charged Error VII. sub- instruction The instructions. as used “nighttime” alone. “messuage” term .the use did ease mitting were chickens find jury required It from Johnson Trav said messuage of the “from John- Trav said dwelling house which premises thus directed having been jury ours.) The (Italics is situated.” son necessary. “messuage” definition further no we think
Í189 necessary “nighttime” a definition Nor do we think taken that he had proved admission this case. Defendant’s Obviously eight ten o’clock. night between Friday night fall. before evening night, he meant the term. require a definition as to was not-such evidence *12 defend- refusing erred in court The contention YIII. circumstantial evidence on instruction requested ant’s is not and for new trial preserved in the motion ¡}eforeus for reYiew. respect error in contention of appellant’s We considered have store Nelson’s by Johnson of his identification to the his wife cross-examination improper his claim committed no error are satisfied and we permitted respect. either appel- carefully considered the record and examined We have error. prejudicial find no assignments error lant’s numerous clearly guilt was trial fair appellant had think We established. Westhues affirmed. circuit court is judgment of (7(7.,concur. Fitzsimmons, C., Cooley,
PER 'CURIAM: —The foregoing opinion All concur. judges opinion of court. adopted as the 559. (2d)W. S. McMillen, Appellant. R. v. John The State Two, 1931. June Division appellant. Ernst for G. E. Williams and
Kyle D.