273 Mo. 366 | Mo. | 1918
Upon an information charging him with the larceny of one black cow, the property of one C. G. Awbrey, defendant • was tried in the circuit court of Taney County, found guilty, and his punishment assessed at two years ’ imprisonment in the penitentiary. Defendant has duly perfected an appeal.
The crime was alleged to have occurred on the 23rd clay of August, 1915.
Upon the part of the State the evidence tends to establish the following facts: ,
Prosecuting witness Awbrey lived on a farm about one mile northwest of Protem, Taney County, Missouri, and owned a black cow and a heifer, which were running out on the range about two and one-half miles from Awbrey’s home and about four miles north of the Arkansas State line. The black cow weighed about one thou
“She was a black cow; and had white on her belly and white on her flank and her right front foot was white; that is all the white there was about her. ’ ’
About the last of July or the first of August, 1915, the heifer “came up” without the cow and the owner never saw the black cow after that date. Several cattle ran on this range. The extent of the range is not given. The owner made a search, but was unable to find the cow. A road leading from the neighborhood in which Awbrey lived went in a westerly direction about four miles, passing the farm of one Bud Ellison, and there turned in a more northerly direction toward the farm of Lee Jenkins. The Jenkins farm was four or five miles north of the Bud Ellison farm.
One Sunday night in 1915 and about threshing time, Bud Ellison heard a strange cow bell in the road which passed his house. He did not see the cow which wore the bell, nor did he see any one driving cattle, because it was too dark. He testified, however, that Awbrey’s cattle were not in the habit of running around his place.
In November of 1915, C. B. Wood and his son were going along the road which runs from the Bud Ellison farm to the Lee Jenkins farm, and at a point about one mile south of the Lee Jenkins farm the boy discovered a cow bell at the edge of the road. The bell had a small piece of leather strap attached, which 'had the appearance of having been gnawed by rats. The bell was filled with decayed grass, etc., which had the appearance of having been stuffed into the bell. They took the bell home with them, and a few months later Awbrey having-heard of the incident called at the Wood home and after describing the bell which was formerly on his cow, which tallied with the description of the bell, was given possession of the bell. This bell was introduced in evidence at the trial and was identified by Awbrey as the bell which was worn by his black cow at the time of her disappearance from the range.
“Q. Which of her feet were white? A. Each one of her hind feet.
“Q. You did not notice any white except upon her hind feet? A. Not that I noticed of any more.”
After placing the two cows in the alfalfa field, defendant went to a neighboring ranch to get another cow which he claimed belonged to him, and after returning with the other cow defendant and his helper drove the three cows to “Bud Sheralds.” The witness Jenkins had some cattle which he also on that day took over to Sheralds’s. After the cattle were driven to Sheralds’s defendant sold his three cows to a man by the name of Brown Morrison from Illinois. Jenkins knew that defendant was coming with the cattle, because the defendant had told Jenkins on the Saturday before that he was going to drive some cattle up to his place on the next Monday morning and that they would drive their cattle together over to Sheralds’s. Defendant did not tell Jenkins from what place he was going to bring the cattle, but the witness presumed he was going to bring them from home. The witness also testified that the black cow did not have any bell on her when defendant drove her up to his farm on that day.
Charley Ayers, the constable, testified that after the warrant for defendant’s'arrest was delivered to him he was unable to find the defendant, that he went to the home of defendant’s father and inquired and was told that defendant was at another place. The constable left word for defendant to meet hjm at Protem. The constable heard that afterwards the defendant came to Protem that same day, but did not stay. A few days later the constable heard that defendant was leaving the country and followed him as far as Bradleyville, but upon arriving at Bradleyville learned that defendant had taken the hack and departed.
Upon the part of the defense the evidence tends to establish the following facts:
Defendant testifying in his own behalf stated that he was twenty-two years old, and that in the summer of 1915 was engaged in farming and buying and selling-stock on a small scale. That during that summer he bought a “black” cow and a red one from Albert Sissom, who lived near the Chigre Hill School House in Marion County, Arkansas. That no one was present when he made the purchase, but just after the defendant paid for
After remaining in Oklahoma a short time he went to Columbus, Kansas, remaining there two months, and then went to Iola, Kansas, where after remaining a month, he went to Branson, Missouri, and there learned that the grand jury had indicted him for stealing a cow; he thereupon went to Forsythe, Missouri, and gave bond. Afterwards he returned to Collinsville, Oklahoma, and remained there most of the time thereafter, except for a period of about two months. He stated that Richard Mullinax how lived in Rush, Arkansas, and he was unable to procure his attendance at the trial. He further testified that it was about fifteen miles from Chigre Hill
Defendant also admitted upon cross-examination that in 1915 in the circuit court of Taney County he was convicted of selling liquor in violation of the law, and that in 1911 in said circuit court he was convicted of burglary and larceny.
Harry Long testified that he met defendant near the Chigre Hill School House at the time in question, and defendant told him that he had bought some cattle from Sissom and wanted the witness to help drive them out. Witness said that there was a dark looking cow there, but that he did not pay much attention. Two other witnesses saw defendant going towards the Chigre Hill School House about the time in question.
Albert Pemberton, by deposition, testified that on July 16, 1915, he saw defendant near the Chigre Hill School House and that defendant pointed out to him and witness Long two cows which he claimed lie had bought, one of the cows was red and the other was “a large black and white spotted one; ’ ’ that while they were looking at the cows Sissom came out and told defendant that he did not mean for him to tell about him selling those cattle for a few days, and said, “Fred, you said you would not tell about me selling you these cows for a few days?” and defendant replied, “I haven’t said anything to any one about it yet. ’ ’ After this conversation the witness, together with defendant and Harry Long, went to Protem, the defendant leaving the cows on the range near the place of purchase.
In rebuttal, Emerson Rozell, testifying for the State, said that in 1915 he lived near the Chigre Hill School House in Arkansas, within a quarter of a mile of Albert Sissom; that he was well acquainted with Sissom, but did not know that Sissom owned any cattle; that he (witness) supplied Sissom with milk that year. On cross-examination the witness said he never heard Sissom claim that he owned any cattle, but that “he might have had some hid out in the brush, on the range.”
After a very careful consideration of the evidence in this case we have reached the conclusion that it contains sufficient additional evidence to distinguish it from the Lee case, and that the evidence is sufficient to make the question of guilt one for the jury’s determination. The fact that the cow was driven at night a distance of ten or twelve miles, and the next day sold and shipped away, and the further fact that defendant left the State at a time when he knew that he stood charged with the crime and that a warrant was out for his arrest are facts sufficient within themselves to distinguish this case from the Lee case, and when those facts are considered in the light of the whole evidence we think the evidence sufficient to make a case for the jury.
The main point urged by appellant in behalf of his contention that the demurrer should have been sustained is that the evidence wholly fails to show that the cow driven away at night by defendant was in fact the cow alleged to have been stolen. ' We think the evidénee in this regard was sufficient to warrant the jury in finding that the cow taken.by defendant was the one charged to have been stolen. The owner of the cow 'described his cow as follows:
“She was a black cow, weighing one thousand pounds, wore a bell, and had white on her belly and white on her flank and her right front foot was white.”
“As I said awhile ago, I think she weighed 920 pounds, and she had some white on her.”
It is true that one of the State’s witnesses, after testifying that the cow which defendant had in his possession was a black cow weighing nine hundred or a thousand pounds, further stated that “she had a little white on both hind feet. Yet on cross-examination concerning the white on the cow he said: “I don’t remember; I remember noticing some white on her feet.”
It will be recalled that the bell which was worn by the cow belonging to the prosecuting witness prior to her disappearance from the range was later found along the road over which defendant drove the cow on the night in question and at a point six or eight miles north of the range upon which the stolen cow was located prior to her disappearance. We think the evidence considered as a whole, was sufficient to make the question of the identity of cow one for the jury.
II. It is contended that the court erred in giving instruction numbered 8. This instruction informed the jury of the presumption arising from the recent exclusive and unexplained possession of stolen property.
The instruction given follows substantially (so far as the present facts justify) the form approved in the case of State v. Good, 132 Mo. 114, l. c. 125.
The purpose of an instruction upon this question of law is to aid the jury in identifying the thief when it has first been found by the jury that a theft has in fact occurred. [State v. Warden, 94 Mo. l. c. 651; State v. Lee, supra.] In the cases cited the giving of an instruction on this subject was held to be erroneous because in each of those cases it stood admitted that the defendant was the taker (the only issue there presented being whether the taking was or was not felonious), hence the instruction in those cases was unnecessary and apt to be misleading.
Other instructions appear to he in proper form and we find no error in the case. The judgment is affirmed.