*1 656 Duncan, Appellants. and Grover State v. James Duncan (2d) 1021. S. W. Two, June

Division Shwttz & B. M. for appellants. Owen and Lockwood *2 Shartel, Stratton Attorney-General, Bay and Weightman, Assistant Attorney-General, for respondent. FITZSIMMONS, Appellants by the jointly were indicted C.

grand jury County of Platte the larceny planter, for the of a corn property they of Frank Upon $86. Foster and of trial the value of guilty were at punishment separately found and their was assessed years two penitentiary. They in in accord- the State were sentenced they appealed. prin- ance with the verdict in The and due course cipal, question sufficiency if the the sole for our decision is the jury. evidence to to the warrant the submission the case day, Frank charge April 21, The 1930. On that was laid as of of the town Foster, living County just a east farmer, in Platte which road, planter Dearborn, public a corn in his'field near a left night, about ten That acquired days before. he had in trade a few from Dear- Foster, returning home o’clock, sons, one of his Luther in been left had which born, passed along near the the road father’s to his next on the road parked truck the field. He noticed a owm, a like a truck thought that it was at the time field. He “Q. anything there Was why it. he noticed That was Chevrolet. ? night that in the road you saw there you say truck unusual about the truck; iny to was similar I noticed it nothing unusual. A. There was unlighted. There truck think of it.” made me is what light been a there had and night was dark in it. The no one and his fields over Foster looked morning Frank The next rain. init left where he had spot went to He missed the in Marks day before. planting close of at the rows edge to the moved been it had showed planter, field, made marks road. Other public overhanging point field to of the and led truck wheels of by been public facts caused field. The the tracks near to point judge up Foster to been run in the ditch the truck had edge body truck field and the moved to the were in the road carted off. About the marks the-field and prints persons. wheels of the foot of three The marks along public highway truck as the main were traced the road as far neigh- appellants were lost. A was. Foster’s there relative might neighbor’s gone past have to or this bor on the north. necessarily. farm but not living 6, 1930, Courtney, near

On June Jack Burton and Alva County looking cow. County, for a were in Andrew Fosters highway day, passing the farm along As were drove appellant, Jim near Amazonia Andrew make as saw in the field near barn a corn of the same month- Frank Foster’s farm a disappeared which had twenty farm in Platte is about half before. Foster’s place Jim Duncan’s Joseph, from St. miles in direction one *3 County Joseph opposite eight St. Andrew is about miles from gov- Joseph seat County, of which St. is the direction. Buchanan and Counties. Burton ernment, and Andrew lies between Platte they seen planter which had Courtney notified Frank Foster sons, Edgar Oren, went to County, in and Foster’s Andrew it as farm, field and identified Duncan found the father’s. their boys Duncan no when the visited was one home they Jim was there when returned time, but Duncan farm the first In the County search warrant. officer a an Andrew “Q. following What testimony Edgar Foster, the occurred: direct Jim Duncan his place there with at that took was conversation planter, if I believe. had a corn A. We asked he door? was there. say? A. He said there

“Q. he What did you A. We told him we had a search “Q. do? Then what did wanted to look around. warrant and

“Q. No, sir, for say anything he that? A. he us Did about said to look.” planter, Jim said

When the Fosters found and seized the Duncan brother, The planter Grover. when he had borrowed it from his plain public barn. Dun- was in road near the Jim seized view can, when visitors arrived behalf, own testified that Deere. had John inquired if He answered he a he had International, he They for an search warrant said had a go At the time of the seizure look for it.” “told them to ahead and on warrant, Jim Duncan had been under the search finding years. for The ten the farm Andrew Frank been taken from after it had on Jim farm six weeks Jim Foster’s sons farm, conversation between and the Foster’s Jim Duncan. against appellant, the State’s case up Duncan against The case Grover Duncan rests exclusively almost testimony of John W. Coots, Jr., the prosecuting attorney of Platte represented who the State at the trial of appellants. This testimony related to certain admissions Grover Duncan and also to a Chevrolet truck owned him. testimony Coots in the nature of admissions Grover Duncan was that, about six weeks after the theft of corn planter had been reported, Mr. Coots was in Dearborn in County. James Duncan was then under bond. “Grover up Duncan me,” came Mr. Coots, testified “and said: you go?’ ‘Won’t ‘Why?’ let James And I said: And he ‘It said: was not his corn He anything didn’t have to do with it.’ -And he said: ‘It my was I let him borrow it.’ I said: you get planter?’ ‘Where did the corn And he ‘I bought said: it from negro in St. on night.’ Joe down Fourth Street one I said: ‘What negro’s ‘I name?’ He said: saw never him I before.’ said: ‘Do ” you know is now?’ where he And ‘I he said: don’t know.’ Grover behalf, bought on his own that he testified from negro Long, living Elwood, named Will Kansas, $65 near implement Street, Joseph, Missouri, farm section Fourth St.

day time, buy Duncan he, plow. while there He also testified that, in his conversation with Mr. Coots at Dearborn he told the Long. prosecuting attorney Foster, the name and address Frank planter, State, the owner the stolen called rebuttal tes- present tified that he was at the conversation at Dearborn between attorney; prosecuting Grover Duncan and the Coots did not inquire negro whom Duncan the name of said that he bought planter, and that Duncan did tell the name. testimony Mr. “I Coots follows: about *4 driving upon truck or three

observed Grover Duncan a motor two time, occasions, it out in of the courthouse and he left front one boys, who testified pointed I it Ketchum and the Foster out to when Con tires of it.” Just ago, moment examined the of Grover boys examined the tires Ketchum and the stable of the it courthouse Duncan’s while stood front truck directly disclose. does not City, County, the record of Platte the seat about they made the examination strong inferences that But there are Grover Prosecutor Coots and between time of the conversation the Oren the was taken. six weeks after Duncan, namely at least clay the ditch in the soft of the truck tracks Foster looked at the day after the the to his father’s field road next beside the the court- in front of examined weeks later he disappeared and six n which truck tires the City the treads of the at Platte house was When he Duncan’s. Grover to them as pointed out Coots had identify truck those “could whether he Coots Prosecutor asked truck that by the made as kind and character being as the same tires away,” “They took the corn Oren Foster looked answered: to be On appeared the same.” cross-examination it that the bas:s of some, Oren’s identification if not trucks have was most Chevrolet equipment; Firestone as marks in the tires standard the truck, six weeks ditch were Firestone tires and that Duncan’s seen later, Ketchum, to “tell had Firestone tires. Constable when asked you jury compared how the of that truck track tread there,” beyond saw out answered: “The identical track.” But same Duncan’s the fact that the tires on truck were new tires testify any identity. tires, points to were not old Ketchum did not manner, Pennington, of Platte who saw the In Sheriff like car also the tires on Duncan’s six weeks tracks road and markings in the mud together them because the had been identified testimony Tn tread tires truck size. all the about diamond marking substance or the tires and the mud there was markings, both to the peculiarities common scintilla evidence tending tracks, individualizing to show that each and and the tires by the on road been made tires Duncan’s imprints testimony in was that the marks its essence truck. The truck, weeks Duncan’s seen six tires and that were made Firestone was no evidence later, equipped tires. There was with Firestone appellants in Platte at or presence of either one corn the time of theft about appellant Grover Duncan’s testimony tending support Joseph, April, agreement in St. late in that made an defense he Long, Dun- man whom from Will a colored buy $65 George Rogers, neighbor W. War. know'n since World can had day Grover Joseph, Duncan Duncans, in St. Long Long. bring saw' bought He also planter Rogers days in un- later. aided farm a few' truck to Duncan’s in a Boling for it. Marvin loading pay Duncan planter and saw Joseph, were at the Grover Duncan Dorothy, w'ife, residents St. his before, buying butter, eggs, milk and as had done farm planter. Andrew' large the corn day colored man delivered that a Cora, neighbors met a colored wife, of Grover Cobb and road, driving in which a truck w'as man on way farm and the witnesses directed inquired to Duncan’s man Gobin, another appellants. Preston sister of the Mrs. Cobb is a him. All place. out of Grover man drive neighbor, a colored saw' part of these incidents latter the time fixed witnesses these color, large negro light and of They described April, *5 boy with him. white he had a said overruling appellants’ trial court the order I. First as to opinion It our that the State failed to is evidence. to the demurrer court should that the have case and sustained a submissible make proved by the State substantial evidence It is true demurrer.

661 corn 'was stolen from Foster County; Frank in Platte of of $86 that it was the value and that six weeks later it was found County. farm appellant of Duncan in Andrew James But guilt presumption arising possession recently of prop- from stolen erty longer 139, may indulged. Swearens, no be 294 v. Mo. [State Besides, 241 possession by S. W. Jim Duncan six 934.] hardly be recent, explana- weeks after theft could called and his tion that he from his had borrowed it brother Grover was dis- by puted explanation brought or controverted. In fact this out Edgar State in the direct examination Foster in the State’s destroy explanation ease chief. Therefore Jim Duncan’s should him possession as to which the fact of evidential value otherwise might have. against upon ease Grover Duncan rests tire attempted

tracks in the to Frank com road next Foster field and by parison six tracks as weeks several witnesses of those re upon membered with the treads of tires a truck seen in them City. comparison Platte established the fact that the tire mark ings upon were tires of the same as those make enough jury finding That is to warrant a track. felony grand larceny. Tt guilty is true that defendant which Luther as was the truck truck was the same make night parked road on the the theft of the But saw nothing that truck. In that there was unusual about Luther testified days production and and of standard quantity distribution these designs trucks, and of mere sameness of makes uniform tires City in Platte was used vehicle seen six prove cannot tend to of a elsewhere in crime the same in the commission weeks before county. q3 Morney, 43, v. S. W. Mo. by this court State As was said altogether felony upon rests “When conviction 1117, l. c. 1118: ease, proved evidence, ‘the circumstances this circumstantial hypothesis other, consistent with with each must be consistent hy inconsistent with the the same time guilty, and at accused is hypothesis every other rational innocent, pothesis that he Meas 488, authorities Cyc., guilt.’ cited.]” that of except [12 did not warrant or State rules, the case made by these ured guilt of either jury of issue of the support the submission implies, of offense a criminal “The commission appellants. necessary time and at the presence of defendant course, the 628, 14 W. l. c. Howell, Mo. S. v. 15.] place.” [State might jury which the circumstantial, or evidence, direct was no County at appellants either of the presence infer the Frank Foster’s the theft of near the time of *6 2 3763, II. Section Eevised provides Statutes 1929, Missouri

if, upon appeal by a convicted case, defendant in a criminal “the judgment reversed, be Supreme Court trial, shall a new direct that defendant absolutely discharged, be according to the circum stances of the case.” In the case evidence, instant was, such as it produced by the wholly State was Appellants circumstantial. pre strong sented a According defense. to the circumstances of this case justice we do not believe that the ends of would be best served directing a new It accordingly trial. judgment ordered that the the trial be appellants discharged. court reversed and the Cooley and Westimes, CC., concur. by Fitzsimmons, C., is opinion foregoing PEE CUEIAM: The judges All of concur. court. opinion

adopted as Independence Com and Furnace Stove Dodd v. Elmer William (2d) Corporation, 114. S. Appellant. pany, W. 10, Two, 1932. June Division 8, 1932; Opinion Term, 1931, April *NOTE: motion filed at October rehearing April Term, filed; motion June overruled at