Opinion
No. 43190.
June 8, 1953.
APPEAL FROM THE CIRCUIT, HOWARD COUNTY.
Wilbur F. Daniels, Fayette, Paul M. Peterson, Coumbia, Peterson and Nelson, Columbia, of counsel, for appellant.
John M. Dalton, Atty. Gen. and Julian L. O'Malley, Asst. Atty. Gen., for respondent.
Defendant was convicted of larceny of sheep and sentenced to two years imprisonment. Sections 560.155, 560.160, RSMo 1949, V.A.M.S. Upon this appeal, he contends that the trial court erred in overruling his motion for a directed verdict at the close of all the evidence, and in giving Instruction No. S-3.
In determining defendant's first assignment, "we consider as true the evidence favorable to the state and the favorable inferences reasonably to be drawn therefrom. Evidence to the contrary is rejected." State v. Harmon, Mo.Sup., 243 S.W.2d 326, 331[7].
Defendant and Jennings operated contiguous farms in Howard County. The bottom wire of the division fence was ten feet above a ravine bed and it was conceded, the Jennings-Moller sheep hereinafter mentioned "got over on defendant" at that place.
In September, 1951, Jennings owned 27 native ewes. These were not "branded." Jennings said that Western sheep do "not necessarily have a brand (painted on the wool) on them when they come out of the west but some of them do have." He had seen several Westerns with a painted "L" or "O". On September 8, 80 Western ewes, which Jennings and Moller had bought in Iowa, were brought to the Jennings farm. Some had a painted red or brown "L" on their right shoulders. Others were unmarked. Jennings and Moller painted a 2-inch "O" on the ewes' "back hips" with a twisted wire "O" dipped in a can of green paint. On November 28, this mark "was pretty plain on several of the sheep. Some sheep it wasn't too plain. It had kinda gone down in the wool, but it was still there. You could find it if you examined the sheep close enough and you could see it off at a distance." On November 12, Jennings and Moller counted the partnership ewes, put them with Jennings' 27 and let the 107 "run over the whole place."
Jennings testified that he "generally aimed to count" his sheep every month. His son Keith looked after them and "I told him to count them but he couldn't. It's pretty near dark when he gets there. * * * It's quite a job to count them, particularly when it is dark." Jennings did not know that any of the sheep were missing before November 28.
Moller testified that on November 26, Jennings told him that he "thought some of our sheep were out and that we'd better get them up and count them and see about them and if I remember right I believe he said that Mr. Holtzclaw told him that there were some of the sheep over on him but there wasn't any hurry about getting them. * * * I believe he either told me that Keith told him or Holtzclaw told him. Q. In other words, Mr. Holtzclaw had told somebody and it had gotten to Mr. Jennings that his sheep were out on him? A. That's right."
On the morning of November 28, Moller and Keith set out "to look for the sheep." Moller said that they "rode over to Mr. Holtzclaw and we found 13 of them. I was bringing them down toward the barn, kinda knew where they got out at, and I seen Mr. Holtzclaw and I said, `Is that all the sheep in there?' and he said, `There were more in here.' I said, `There's more gone than that,' so he said, `You might look in the lower pasture. There might be some there,' so I rode around but I never did find any more and he told me that if I found any sheep that he didn't have any old sheep left, if there were any more in there they were ours, but we never did find any more but those 13, so we brought them back and I counted the sheep and there were still 25 of them gone, so Keith and I rode all around adjoining places. * * * We rode his (Jennings') fences twice and I never could find any place where they'd gotten out, only this one place where they'd gone out upon Mr. Holtzclaw, so then we rode again, and I rode back down around all over his (defendant's) fences. * * * I couldn't see where they'd gotten out (of defendant's farm) * * *." Defendant told Moller that he had shipped all his sheep, and that "if there were any more down there," they were Jennings' and Moller's. When Moller first saw defendant that day, he (defendant) pointed out the sheep and said, "There's your sheep up there. * * * Is that all your sheep? I said, `No.' He said, "There was some more in here. They must have gotten back in or something.' * * * Well, he said they could go out under a gate up there. He had a gate that went out into the road. That was his only suggestion. He said they could have gone under the gate into the road."
On November 30, Jennings and Moller together made another search on the Jennings farm and on two of the other three farms contiguous to Jennings'. They found none of the missing ewes. They found "no tracks on" defendant's fences where they could have gotten off of defendant's farm.
Jennings testified that defendant also had Western ewes. He was not familiar with defendant's herd, had "just glanced at them" a few times in the summer of 1951, and estimated that defendant had "somewhere around 50 head." They were in the pasture in front of defendant's house. Jennings did not pay "any particular attention to them * * * looked at the sheep, naturally, like any farmer will if he is around sheep." He couldn't say for sure that defendant had any other sheep on his farm that summer beside those 50, did not see defendant's sheep in the fall, and did not know of any markings defendant's sheep might have.
Noel Richerson, a livestock trucker, testified that: On the afternoon of November 16, defendant asked him to ship around 50 or 60 sheep and a bull the following Sunday night; he told defendant that he could not take them Sunday night but could take them that (Friday) night; he arrived at defendant's farm after 5 p. m.; it was dark and he had his truck lights on; it was raining and snowing; there were ewes in the barn; some sheep were outside the barn but he didn't know whether they were ewes or lambs; there were "pretty good" lights in the barn although the bulbs were dirty; an outside barn light was on while the sheep were being loaded but a "tarp" over the truck bed made it "dark inside and I imagine that was one reason it was so hard to load; it took a good while because it was the worse bunch of sheep I ever loaded in my life. We'd put in some and they'd come out and we had to pretty near put one in at a time. * * * They were running in and out of the truck all the time; * * * it was impossible to count them"; he did not recall having seen any "brands, identification or marks on any of these sheep. * * * If I would see a mark I wouldn't pay a lot of attention to it"; the sheep were wet and would "run in the truck and back out into the barn. * * * We couldn't actually count the sheep."
After the sheep were loaded, there was no room in the truck for the bull. "Q. Did he (defendant) say anything about he believed he would just ship all of his sheep, he was having so much trouble with them? A. That's what he said. Q. So he shipped everything he had? A. That's right." When defendant talked to Richerson that afternoon, he hadn't said that he was going to ship all his sheep. "Q. After you got there at 5 o'clock and you were having all of this trouble loading these sheep, didn't Mr. Holtzclaw say to you, `I'm going to ship every one I've got. I want to get rid of all my ewes?' A. Well, he told me (that afternoon) 50 or 60 head and the bull, and I got over there and he said, he saw he couldn't get the sheep in and he just said, "Well, I'll ship the sheep and ship the bull later.'" Defendant shipped the bull the following Sunday night.
The records of the Kansas City firm to which defendant had consigned the sheep showed the receipt of 68 live ewes and 1 dead ewe. Other evidence adduced by the state: The consignee's sale of 23 of the 68 ewes to Barnes, who commingled them with 64 others; Barnes' sale of 53 of his 87 to Allen Hadl; Allen Hadl's sale of 6 or 7 of the 53 to Leonard Hadl, 7 to Markley and 7 or 8 to Cornell; that 1 of the Leonard Hadl and 2 of the Markley ewes "had a green `O' on the hips"; that 1 of the Markley ewes had "a red mark on it same as ours (Jennings'-Moller's)"; and that the green paint in wool from the Leonard Hadl ewe, from the 2 Markley ewes, and from a Jennings-Moller ewe (on the Jennings farm) and from the branding wire used by Jennings and Moller, had the same metallic elements as the paint in the can in which they had dipped the wire, and "probably" came from that can.
James Swanson sheared defendant's sheep May 23 and 24, 1951. He sheared 52 ewes. They were in the barn; he saw no sheep on the outside of the barn or elsewhere on defendant's premises. "I don't know whether he had any more sheep or not. * * * Q. Did he indicate to you he held some back? A. Well, he said he did, but if he said anything like that to me I don't remember, it slipped my mind. * * * I don't know. I wouldn't swear to it, he says he did. * * * There was so much talk going on when we was shearing, I didn't keep track of all that. * * * Him and his wife both said they thought they told me that. I don't remember. I wouldn't swear to it."
Swanson said that the only place he went was to the barn and he didn't know anything about how many sheep "were back on the place and I didn't look back there." Swanson (who said that he had "sheared more sheep than any man in Howard County * * * I have sheared 36 years and most of them eight to ten thousand a year") said that Westerns were "generally marked with an `O' on the shoulder, with black, green, or different colors in the wool; * * * the `O' means some western ranch, maybe this ranch puts out more sheep than any other in Missouri." Swanson had found "more sheep with `O' on them than any other sheep he had sheared, but wouldn't try to give the figures; * * * pretty near every Western bunch of sheep shipped in here is most generally branded with an `O' with black and different colored paint." He had seen "quite a few" sheep painted with a green "O"; he had seen them "all over the county, Howard County, Boone County. Cooper County, shear clean up in Iowa and you will find them everywhere." A "Western" ewe meant that it came from the west. "They don't have Western ewes in Iowa. Pretty near all of the Western sheep in this country are shipped out of the west here." The offspring of these Western ewes are not considered Westerns. "They are called the half-breed. The Western is a particular breed."
Aaron Moser testified that he was disking soybeans on defendant's farm when Swanson sheared defendant's sheep. The only sheep he saw were in defendant's barn lot. He "never looked at any field except the one I came through and there was no sheep in that; * * * only the field by the house (barn lot?) and the one I was working in." He could see "the other field" but did not see any sheep in it. After the shearing, he didn't see any unsheared sheep on defendant's farm. However, he wasn't paying "particular attention," and "certainly wasn't looking for sheep."
On December 5, 1951, Trooper Seeley, of the State Highway Patrol, and Kerman Ashcraft, sheriff of Howard County, went to defendant's farm. Seeley testified: "We talked to Mr. Holtzclaw about his sheep, about the number of sheep he had, number of sheep he had killed, and so forth, and he stated that he had sold about 69 head of ewes and that Noel Richerson had hauled them to market in Kansas City. We asked him how many sheep he had. He said about 70 head. We asked him if ewes belonging to Oscar Jennings and Jim Moller had gotten over on his place and he said they had. He said he had told Moller and Jennings that the ewes were over there and they could come get them whenever they wanted to, there wasn't any hurry about it. When they did come get them I believe he said there were 13 head they drove back over. There had been more than 13 there, but at the time they drove them back I believe he said there were 13. He said he loaded the ewes that night in the dark during a snowstorm. He got these ewes up, separated them from the lambs without much trouble, and loaded them into the truck. We further questioned him about the number of ewes that he had sheared, and the number he had altogether. He couldn't state the number he had sheared, although he did say that when he had some sheared that he had cut some ewes back and didn't shear them at the time. The reason he cut these ewes back was the fact that they were poor, weren't in very good shape and he thought they would sell better with the wool on them but he didn't know how many he had cut back or shipped. He said * * * that he had told Swanson at the time he was cutting part of these back and was not going to shear all of them. * * * I asked him if he knew that he had sold Jim Moller's and Oscar Jennings' ewes. He said if he did he done it by mistake. Said he couldn't tell his ewes from their ewes. I also asked him when they came over and drove the 13 ewes back which belonged to them. I said, `What would you have done if they'd driven yours back out and you identified yours?' He said, `I'd have had to taken their word for it.' He said if he did ship Moller's and Jennings' ewes he did it by mistake, that he couldn't tell them apart. Q. Did he tell you how many sheep he owned at that time? A. He didn't seem to be quite sure of how many sheep he had. He had some lambs. He didn't know for sure how many lambs he had. * * * Q. So that Swanson did not shear all of his sheep? A. That is what Mr. Holtzclaw told me. Q. He told you he told Swanson? A. That is right. * * * Q. He told you further if he had shipped any of these sheep belonging to Moller and Jennings that it was a mistake? A. That is right, yes. * * * Q. And he didn't state to you how many sheep he had, didn't seem to know? A. He didn't seem to."
Ashcraft testified: "Well, we were talking to him along the line of sheep getting out off of Jennings and being over on him and that they were short 25 sheep. He said that he knew that some of the sheep had been over on him and they had come and got some sheep over there. * * * He said that he didn't know what had become of the sheep, that they couldn't fly, they couldn't go straight up. Those words were used, said it just looked like something had happened to the sheep while they were over on him. * * * He said he had been short of some sheep himself at times and he would give us the job of hunting them up, if we could find them he'd be very happy for us to do that. We told him we would be as glad to find his sheep as anyone else's if he was short. * * * Q. Did Mr. Holtzclaw say how many sheep he owned at that time? A. No. He said he thought he had had something like 50 when he sheared last spring, he didn't know the exact number, and that he had cut some sheep out because they were old and he didn't want to clip them; he aimed to ship them and they'd bring more money with wool on them than they would if he clipped them."
Ashcraft said that he didn't think that on December 5, defendant "told exactly how many he ever had at any time." Defendant did say that he had sold some of his original herd and lost some. "We asked him how many he had lost. He couldn't tell us, and how many he had sold."
Jennings said that defendant came to his house on the night of January 8, 1952 (six days before the information was filed). "He (defendant) said he just wondered if I was going to talk to him or beat hell out of him. I said, `Well, I'm not going to do that,' and then he said could I identify those sheep as my sheep and I said, `I did.' `Well,' he said, `If I shipped some of your sheep why don't we straighten this out and not let it come to court,' said `It would make a fool out of me' I told him, I said, `You waited too late. We haven't got anything to do with it at all now,' and I was going to town and I told him I had to go and I left so that's what the conversation was."
Asked if he had had any conversation with defendant "after he was charged with the theft," Moller said: "Well, he came up to me and said, `I guess you think I'm a sheep stealer or something, don't you,' and I don't know just exactly what I said. I don't know as I actually accused him of it at the time. He said, `If I've taken your sheep looks like we ought to get together and make a settlement.' He said, `I wouldn't want to be accused of stealing sheep.' I finally told him that was the way I felt about it and he should have corrected the mistake sooner if he felt that way. I said, `It's in the hands of the state, it isn't in my hands now for you to make any settlement with me,' so he just turned around and said, `I hope you don't feel that way about it,' and I said, `That's the way I feel about it' and went on."
All of the foregoing was the state's evidence. Defendant testified that he came to the farm in 1946 and shortly thereafter bought approximately 300 sheep. He had had no prior experience, and "went into the business of raising sheep at that time." He later bought a few ewes but none in the summer or fall of 1951. Between 1946 and 1951, the number of his ewes varied as he would keep back some of the lambs for breeding stock. Defendant did not know how many sheep he had at any one time — "I might count them every 3 months if they looked short." The last time he counted them was in September, 1951, when he wormed them, and he had 77 ewes.
When he sheared in May, 1951, he had 79 ewes, but only sheared 52. He didn't shear the rest because they "weren't doing so good, had shedded half their wool." He didn't know what the trouble was; he fed them blackstrap and they seemed to come out of it. (In rebuttal, Ashcraft stated that in the December 5 conversation, defendant told him that he held back from shearing 25 — "possibly he said 27" — head "because an old ewe didn't bring very much if you clipped the wool off. They sold better on the market, and he intended to ship these old ewes out at a later date." Defendant had said nothing about half the wool being off some of the ewes — "just said they were old ewes and poor and he wanted to ship them because he figured they would be gradually dying off and they would sell better with it on.")
Defendant did not know how many ewes were on his place on November 16, 1951, but thought that around November 1, he had 77 ewes, 59 lambs and one ram. He thought he had shipped 77 ewes in the November 16 shipment until he heard from the consignee, but wasn't surprised that he'd shipped only 69 "because he had not counted them for quite a while since he wormed the sheep." He always tried to count his sheep when he loaded them; this was the first time he shipped his entire herd; "we tried to count them but we never had any trouble loading before because we always loaded when it was daylight and they could see in the truck." Defendant said that, when he got home that day, all of his ewes were in the barn and the lambs were outside. Asked why the sheep were in the barn at that time, defendant said: "Well, it was snowing and I guess they went in to get out of the snow is all I know." He corroborated Richerson as to the difficulty of loading the ewes. They "tried to drive the sheep in the truck [via a chute] and we had a lot of trouble, got a few in and they'd run out, run a few more in and they'd run out, and of course he got a little mad and so did I, because we couldn't do anything with them, so he drug one or two up and says, `Maybe the rest will follow.' We kept fighting them for an hour or an hour and a half. * * * We finally got the sheep loaded. I was going to ship the bull at the time and so I told the man, `We'll just ship all the sheep and let the bull stay there and you can get the bull later.' Q. So in fact you decided that after you had this trouble you would ship all the ewes? A. Just let them all go. That's right. * * * I was going to keep my youngest ewes for breeding ewes."
Defendant denied that, when he loaded the ewes he knew that he was shipping any sheep belonging to Jennings and Moller and that he intended to ship of steal any of their sheep. Sheep of at least three other neighbors had "got on" defendant; defendant notified them and they came and got their sheep; none of these had ever complained to defendant about missing any stock.
As defendant recalled, he asked Jennings "if he (Jennings) had any sheep missing. * * * I know it was after I shipped because I knew I didn't have any ewes left on my place, and he says, `I don't know, but I will come over and look. * * * The first thing that happened, they sent Mr. Jennings' little boy over there to get the sheep. I was picking corn with the picker back in the field. He came back and he says, `Well, I can't get those sheep out.' I says, `No, you couldn't on a horse, being by yourself.' I said, `I'm picking corn or I'd help you.' I said, `You don't have to get them out to day. They are not hurting anything,' so later on, I don't know whether it was Mr. Jennings and Keith or Mr. Moller and Keith, but they came over and got the sheep." When Moller told defendant that some sheep were still missing, he "advised them to go all over my place and see if they could find any more sheep." Defendant did not accompany them but "presumed" that they made a search.
Defendant said that there was an 18-24 inch gap in his fence where his farm cornered Jennings and Gross, with wool on the post and wire where sheep had gone through. Atkin Whitten testified that, on the morning of the trial, he had seen a 18-24 inch gap between two posts at the southeast corner of defendant's farm, the gap being between defendant's and Gross' farms. There was a plain, distinct path through the gap and there was wool on the posts and wire. (In rebuttal, Jennings admitted the existence of the gap in the Holtzclaw-Gross fence but denied its width and said "there's no sheep that went through there" and that there "might be a rabbit path, something like that" through the gap, "no sheep path.")
Defendant's version of his talk with Jennings was: "If I recall right, I approached Mr. Jennings this way. I said, `Mr. Jennings, are you sure you could identify any sheep that was missing?' He said, `I'm pretty sure.' I says, `Mr. Jennings, if I shipped anybody's sheep that money is laying over there in the Kemper State Bank and its not mine, because if I use it something would happen to it,' and he was in a hurry. They were going some place, to a party, and I said, `O.K., I'll see you later,' and I believe that was about all."
Defendant's version of his talk with Moller was: "I approached Mr. Moller about the same as I did Mr. Jennings. I didn't know how to talk to either one of them because I thought they would be mad and I told Mr. Moller that if he was sure, that if he could identify any sheep that I had shipped of his that it wasn't my money, it was theirs, and they were sure welcome to it, and Mr. Moller didn't seem to want to talk about it much. He says, `Let the law handle it.' I says, `If you feel that way — if you change your mind, call me up,' and that's all."
Four witnesses testified that defendant's reputation as a law-abiding citizen was good. (In rebuttal, one witness testified that it was bad.)
We can assume without deciding that the evidence was such that the jury could reasonably infer that defendant shipped 5 of the Jennings-Moller ewes on November 16, 1951. However, the only reasonable inference drawable from the state's own evidence as to the circumstances under which the ewes were loaded (the poor light, the dark truck bed, the confusion, the sheep's perversity and the men's exasperation) is that defendant did not know that he was loading any Jennings-Moller sheep. These circumstances are corroboratory of defendant's claim of innocence and inconsistent with his guilt.
"It is elementary that a criminal intent is the principal element of the offense of larceny, * * *. Often it is difficult to draw the line between theft and a mere unlawful conversion. If one takes the property of another and converts it to his own use, but takes it in good faith under color of a rightful claim, he is not a thief, but an honest wrongdoer, and his liability is civil, not criminal." State v. Claybaugh, 138 Mo.App. 360, 122 S.W. 319, 321. See 32 Am.Jur., Larceny, Sec. 6, p. 925; 52 C. J.S., Larceny, § 25, p. 819.
We rule that instant defendant's motion for a directed verdict should have been sustained. State v. Claybaugh, supra; State v. Gaede, Mo.Sup., 186 S.W. 1009.
The judgment is reversed.
VAN OSDOL and COIL, CC., concur.
The foregoing opinion by LOZIER, C., is adopted as the opinion of the court.
All concur.