State v. Skibiski

245 Mo. 459 | Mo. | 1912

BLAIR, C.

— Appellant was convicted of stealing a steer in Ripley county and sentenced to two years in the penitentiary.

The evidence for the State tended to show that' in the fall of 1909 Henry Cooper owned some cattle which he was permitting to run on the range about his and appellant’s farms and among them was a large, pale red steer, about three and one-half years old, which Cooper had raised and the habit of which, with the other cattle, was to return frequently to Cooper’s place where the cattle were salted and otherwise looked after. About November 20, 1909, the steer disappeared and, though search was made for it, has not since been found.

In October, 1909, appellant sold all his cattle preparatory to leaving the farm that winter, but in the latter part of November, 1909, Mr. and Mrs. MeCune, who lived in the neighborhood, had occasion to pass appellant’s place and observed in a little field belonging to appellant, and some sixty yards from his honse, three head of cattle, one of which the evidence tends to show was Cooper’s missing steer. The McCunes, happening to see appellant as they passed his house, said to him they noticed he had bought some cattle. Appellant said “No” and started down toward the field saying the cattle probably broke in. The McCunes were unaware of Cooper’s loss and gave the matter no further thought. There was evidence that about this time, in the fall of 1909, the exact date being 'left uncertain, appellant sold in Doniphan a freshly removed hide. Thereafter and prior to July, 1910, Cooper received letters which led to his accusing appellant. July 16, 1910, appellant went to Cooper’s farm and told him he had heard of the accusation. Cooper then told appellant his wife and son had. written letters charging him with putting up the steer and then, after the occurrence of the Mc-Cnne incident, butchering it. Appellant first entered a denial, but finally admitted the truth of the charge, saying his wife “gave it. away on him because he wouldn’t live in St. Louis.” He voluntarily promised to pay for the steer on September 16, 1910, the agreed amount being thirty-five dollars. September 16, appellant returned with his son, a lad of twelve, to Cooper’s and asked that he he allowed more time in which to make payment. Subsequently appellant met Cooper in Doniphan and told him that as soon as he received an expected commission from the sale of land for one O’Neal,, he would pay. In a few days the lad who had accompanied appellant on his second visit to Cooper’s brought to Cooper thirty-five dollars. Cooper testified positively that' the steer had been taken and killed. Appellant attempted to explain the sale of the hide in the fall of 1909 by testifying it was from one of his cows which died from injuria resulting from her being struck by a train. The State’s evidence, if true, quite clearly shows this explanation to be false; it appearing the cow referred to was killed and the hide removed from the carcass in April, 1909. Appellant denied taking the steer and denied admitting he had done so. There was some testimony to the effect that his reputation had previously been good.

I. It is insisted there is no evidence to support the verdict. The argument is that there is no sufficient corroboration of the confession to warrant a conviction.

The rule in this State has long been that full proof of the corpus delicti, independent of the confession, is not required. If there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with circumstances related in the confession, both the circumstances and the confession may be considered - in determining whether the corpus delicti is sufficiently proved in a given case. [State v. Patterson, 73 Mo. l. c. 712, 713; State v. Coats, 174 Mo. l. c. 417; State v. Wooley, 2Í5 Mo. l. c. 672; State v. Knowles, 185 Mo. l. c. 176, 177; State v. Henderson, 186 Mo. l. c. 484; State v. Young, 237 Mo. 170.] A like, or even more liberal, rule prevails in other jurisdictions. [Sullivan v. State, 58 Neb. 796; Bergen v. People, 17 Ill. 426; Ryan v. State, 100 Ala. 94; State v. Westcott, 130 Ia. 1; People v. Jones, 123 Cal. 65; People v. Jaehne, 103 N. Y. 182; People v. Brasch, 193 N. Y. 46.]

In the light of this rule it clearly appears the court would not have been justified in taking, the case from the jury. The disappearance of the steer, appellant’s possession of it, the fact that it has never since been seen though search has been made, the falsity of appellant’s explanation as to the sale by him of the “green” hide in the fall of 1909, his voluntary promise to pay for the steer and the fact of payment, coupled with the confession, warranted the submission of the case, even though Cooper’s,positive statement that the steer was taken and killed, be suspected of being a mere conclusion. Of course the fact the extraneous circumstances proved pointed also to appellant as the criminal agent did not lessen their tendency to establish the corpus delicti. Whether the evidence tending to prove the facts stated was true was for the jury to determine as it was also their province, in view of what has been said, to say whether the corroborating facts and the confession, considered together, excluded from their minds all reasonable doubt of defendant’s guilt. The instructions not having been incorporated in the transcript it must be assumed the trial court gave the jury the law of the case fully and fairly and properly cautioned them as to the extent to which corroboration of the confession was necessary. The conflict in the evidence was séttled by the verdict.

II. No exceptions were saved during the reception of the testimony, but after the close of the evidence appellant’s counsel moved to strike out all testimony concerning the payment of the thirty-five dollars to Cooper. The fact of payment was, in the circumstances, admissible (State v. Furr, 121 N. C. l. c. 609) and if there was anything objectionable admitted in that connection, the motion should have been limited to such objectionable matter. It was too broad. In addition, motions, after the close of the evidence, to strike out testimony elicited by and responsive to pertinent questions cannot be regarded with favor. There was no abuse of discretion in this case.

III. It is contended the venue was not proved The testimony of. Cooper, while somewhat ambiguous; is yet reasonably susceptible of the interpretation that, the witness meant to say the taking of the steer was in Ripley county. In addition, it appeared Cooper lived about seven miles southeast of Doniphan and appellant lived one and one-half miles from Cooper. The boundaries of Ripley county may be judicially noticed, as may the further fact that a point eight miles east from Doniphan, the county seat, is within these boundaries. [State v. Pennington, 124 Mo. l. c. 391, 392.] There was sufficient proof of the venue (State v. Gow, 235 Mo. l. c. 325) to authorize the jury to find the taking to have been in Ripley county and the instructions doubtless required them so to find before returning a verdict of guilty. The judgment is affirmed.

Roy, G., concurs. PER CURIAM.

— The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.