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other statutes referred to, does not affects man over 20 years of age (his exact age is them in any way.

not given) lived on a nearby farm about We think that there is no merit in the mo- three-fourths of a mile northwest of the tion for a rehearing or in the motion to trans- Swearingin home. fer to court en banc.

On November 27, 1915, Mable died, as a

result of poison self-administered. After WHITE, C., concurs.

the body was buried, some suspicious cir

cumstances having come to light, the body PER CURIAM. The foregoing opinion of was exhumed and examined by a physician, ROY, C., is adopted as the opinion of the who found a condition of pregnancy three court. All the Judges concur.

or four months advanced.

Mable's father testified that he had never seen the defendant or his daughter together,

but on several occasions had noticed Mable's STATE y. FITZGERALD. (No. 20658.) absence from the house, garden, or milk lot (Supreme Court of Missouri, Division No. 2. where she was supposed to be working, and Feb. 16, 1918.)

on one or two occasions had seen her re

turning to the premises, coming from a lo 1. CRIMINAL LAW E452(4) OPINION Evi- cality from which at the same time he had DENCE-HANDWRITING. Where witnesses testified that they were

seen the defendant walking away. personally acquainted with defendant, and had Mable's mother testified that the members seen him write his name a number of times, of the two families did not visit each other they were competent to testify that in their opinion letters to the injured party read in evi- very frequently, and that at different times dence were in defendant's handwriting.

during the months of July, August, and Sep2. CRIMINAL LAW Om784(1)-INSTRUCTION

tember, 1915, she had seen the defendant CIRCUMSTANTIAL EVIDENCE.

about the Swearingin premises, but on those Where there was no direct evidence of de- occasions he did not come to the house. The fendant's guilt in a prosecution for rape, but mother and father both testified that some such evidence was wholly circumstantial, the injured party having committed suicide before in time in January, 1916, after the appellant's stitution of prosecution, defendant on request arrest and while he was out on bond, he was entitled to have an instruction on circum- passed the Swearingin house one night singstantial evidence given, and its refusal was er- ing a song. The words of the song as re

membered by the witnesses were as follows: 3. CRIMINAL LAW Cm419, 420(1) - EVIDENCE STATEMENT EITHER BY DEFENDANT OR

"Wheep! Wheep! By God! Right here's BROTHER.

where I got it, but she's dead and gone, but all In a prosecution for rape, the court should I ask, boys, is to keep me off !" (or, as one of the exclude a witness' testimony that he overheard witnesses said, "keep them off”). a conversation between defendant and his broth

Mable's sister Myrtle testified that in the er while they were confined in jail, and that one of them, which the witness did not know, summer of 1915 defendant and his brother said, "If you had done what I wanted you to

came to a place in the woods where the witdo, there would not have been anything of this," ness and her sister Mable were gathering since, if defendant's brother made the state. mulberries, and that on this occasion the dement, it was inadmissible.

fendant approached Mable, placed his arms 4. CRIMINAL LAW m407(2) IMPLIED AD. MISSION-SILENCE IN FACE OF CHARGE OF

about her, and the two walked away together, GUILT.

out of the witness' sight. Defendant's silence in face of a charge or Gladys, the ten year old sister of Mable, insinuation of guilt made in his presence, he be- testified that she had seen her sister Mable ing under arrest at the time, would be no evi- and defendant together a number of times dence against him.

during the summer of 1915, and had seen Appeal from Circuit Court, Douglas Coun- them put their arms about each other; that ty; C. H. Skinker, Special Judge.

on one occasion while she was with her sisRobert Fitzgerald was convicted of rape, ter Mable and defendant out on the road and he appeals. Reversed and remanded.

near their home Mable threw a glove to the Charged with the crime of rape upon one side of the road and asked the witness to get Mable Swearingin, a female child under the the glove. When the witness went to get age of 15 years, defendant was tried in the the glove the defendant and Mabie ran circuit court of Douglas county, found guilty, away from her out in the woods, and in a and his punishment assessed at seven years' short time thereafter Mable came back to imprisonment. Defendant duly appealed. the house; that on one occasion defendant The crime is charged to have occurred in told the witness he would give her a dollar October, 1915.

if she would not tell her father and mother The evidence upon the part of the state "about him and Mable.” may be summarized as follows:

After Mable's death several letters were Mable Swearingin (hereinafter referred to found in or about the Swearingin house by as Mable) was born April 6, 1901, and at the different members of the family. About time of the occurrence of the alleged crime 14 of these letters were introduced in eviwas residing with her parents on a farm dence. Some of the letters were unsigned, in Douglas county, Mo. Defendant, a young others were signed “Robt.” to Mable or "Kob

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ert," and some were signed by the initials paper and you come over to the little Rock this “R. F.” Most of the letters were addressed eve and we will Have sum fun Shore Ha H to Miss Mable Swearingin. One of the letters ... Bet you got Scard goin across that Hollow

friday night So good Bye Bye and write when uses obscene language, but none of the letters you git this ill put two or three kisses on this. expressly mention any acts of sexual in- (Cross marks.]”. tercourse. It will not be necessary to copy

Exhibit II: “Ongo Mo. Tuesday M-9 Miss herein all of said letters, but we will copy a MV S. Der Swet Heart ill write you a letter few of them which will serve as types. Cop- Sunday night ha ba 'Got home all rite But say

as told you would ha, ha, how did you make it ies of some of the letters follow:

ill tell you it certily was Dem Dark ha ha I Exhibit G: “Ongo, Mo., Aug. 3, 1915 Miss shore Diden loose eny time I gogt home just Be Mable Swearingin Hello Sweet How be you fore it went to rainin. 0, Buy God I lost my I am all O K this eave. You bet your sweet Shoe heel up in J.C. S. field Som Whare. Dont life Kido that dun me good when I got your you no Swet H I diden loose eny time hunting letter and heard you was all 0 K. This 'm I for it. I keep Goin Say M V what was that God was over thire a long time looking to see you Dem Dog Barking ill tell you Sweet heat That eny time and guess you was in the hay field at made me feel Dem Bad ill Bet he woke Them work. I seen Myrtle this m She said you all up Diden if ha ha if he Did Cause my Girl was at work ha ha Kid you will have to excuse

to git cout ill Shore Git him Some of thes long bad scratching my knee don't make much of a and happy Days Now Honey when you when riten dest it too dam soft. Yes you come

you write Be Shore and tell all of them late to night and we try it again. Come over there news I Shore Do wat to know how you made where we was last night ill be there come Bout it Sunday night." sun Down ill not try and not write much this time so bye bye. Robert to Mable."

Two witnesses were placed upon the stand Exhibit K: “Saturday m 10:30 Ongo, Mo. for the state for the purpose of identifying Miss Mable Swearingin Dear Sweet Heart ill the handwriting of these letters as being that take time this morning to scratch you a short of the defendant. Objections were made and letter as I diden git to see you last night why diden you com over at the little rock yesterday saved to the ruling of the court in admitting eave I waited till all most dark. If you had the testimony of these two witnesses, and com I was am to com over in To day ill bring there were also objections made and excepthis letter over this after noon and hope (word tions saved to the introduction of these varirubbed out] I will see you when I git there and find a long letter under the little rock. Say ous letters. More will ve said about that in Kidd if you git this in time come up in the the course of the opinion. corner of the old field when you git this. Say

The genuine signature of defendant on his Kido I shore would like to know that you heard that night and will git this letter. It seems like bail bond given in this suit was also admitI never is goin to get to see you eny more. Ited in evidence over the objection of defendam some what down hearted to day and got the ant. blues ha ha hop you are the same I just feal like ive lost my M S but hop not I guess you

Over the objection of the defendant one of are gon to meeting to day I guess ill stay by the state's witnesses was permitted to testify my lonsom to. Say I shore was scared that that while he was in a room at the county jail night and isen quit over it yet. Say when I adjoining the one occupied by the defendant see you ill hug you just to bet the band. I seen My S Sat. eave goin after the cows but diden and his brother he heard one of them say (but talk with her eny Say what was that but Wil was unable to say which one of them said it) lie H and F H you talk like in your letter that the following: I had told thim that I was telling them I was "If you had done what I wanted you to de meeting you down thire I haven seen them in a there would not have been anything of this." long time and if they told you eny thing it is

lie and ill tell them so when I see them The evidence upon the behalf of the deand if they told eny thing when I see you be fendant was substantially as follows: shore and tell me that it was ha ha I guess you will find several mistakes in this letter

Four witnesses testified that the reputation for I am in a hurry. You can take them as of the defendant as to being an honest and kisses I guess I better qit for this time. I would law-abiding citizen was good. Some of these write a long letter but haven got time if I

same witnesses testified that the reputation dont git to see you to day you write and tell me whar I can see you to night it might be that I of Mable's father for truth and veracity was diden com to the rite place last night and be bad. shore and ans this just as soon as you git this The defendant, testifying in his own behalf, and if you got time you come up in the corner | denied that he ever had sexual intercourse of the old field. I be up there all eave I want know wbat them durn it has told you. So ill with Mable, and denied he sang the song ring off ans soon. to my Ms from R F."

mentioned by Mable's father and mother. Exhibit F: “9-20 minutes. Ongo Mo Aug Miss Mable Swearengin Depew Mo Dears Sweet

J. S. Clarke, of Ava, and Tom Moore, ok Heart. How be you I am all 0. K. and guess Ozark, for appellant. Frank W. McAllister Mable is the same Hop so eny way Say Kidd | Atty. Gen., and C. P. Le Mire, Asst. Atty if you can you com over heare This eave Bout Gen., for the State. Three and ill Be thire and when you git this you ans with a long letter and tell me if you can com I know you can if you try ill tell you this is a

WILLIAMS, J. (after stating the facts as lonsome old Day and just think hafto wait all Day to git to See you, god Bless your old Sweat above). [1] I. Appellant contends that the Heart I cant hardly wait that long if you know court erred in permitting witnesses Huse how Bad I want to see you Shore would come Swearingin and his son, Roy Swearingin, to I cant go eny whare el's for thinkin a Bout testify that in their opinion the letters read in my sweet little Mable well I guess I Better Bring this god dem thing to a close I would of evidence, were in the handwriting of the de wrote more But Diden Have But one Shet of | fendant. The specific point now urged by

a

appellant is that these witnesses were so per- , reason the defendant would possibly not committed to testify without a showing first be- plain. If, upon the other hand, the defending made that they were competent witnesses ant's brother made the statement, it would in this behalf. We are unable to agree with still not be admissible for any purpose. Even this contention. We think it clearly appears though the language used could in any manfrom the evidence that both witnesses were ner be interpreted as a charge or insinuation acquainted with defendant's handwriting. of guilt made in defendant's presence, yet his Each witness testified that he was personally silence thereto, he at the time being under acquainted with the defendant, and had seen arrest, would be no evidence against him. him write his name a number of times. Un- State v. Young, 99 Mo. 666, loc. cit. 674, 12 der the rule long established and universally S. W. 879; State v. Kelleher, 201 Mo. 614, applied such a showing was sufficient to es- loc. cit. 636, 100 S. W. 470. tablish the competency of the witnesses to We do not find other matters urged of sufgive an opinion (although not a positive opin- ficient importance to merit discussion. For ion) as to whether or not the letters were in the reason stated in paragraph 2 above, the the handwriting of the defendant. State v. judgment is reversed, and the cause is reStair, 87 Mo. 268, loc. cit. 273, 274, 56 Am. manded. All concur. Rep. 449; State v. Minton, 116 M 605, loc. cit. 614, 22 S. W. 808; State v. Harvey, 131 Mo. 339, loc. cit. 344, 32 S. W. 1110; 1 Green

STATE v. NAVE. (No. 20434.) leaf on Evidence (16th Ed.) § 514; 1 Wigmore on Evidence, $ 694. The two witnesses (Supreme Court of Missouri, Division No. 2. in this behalf were not very positive in their

Feb. 16, 1918.) testimony, and would not be considered as 1. LARCENY Cmti8(1)-GUILT-QUESTION FOR very strong or convincing witnesses, but they JURY. qualified sufficiently to give their opinion un

In prosecution for larceny of a cow, quegder the above-stated rule, and the weight to tion of guilt held for the jury. be given their testimony was a question for 2. LARCENY Ow68(1)— IDENTITY OF PROPERTY

-QUESTION FOR JURY. the jury.

In such prosecution, question of the identity [2] II. It is next contended that the court of the cow which plaintiff drove away with the erred in refusing to instruct the jury on the one charged to have been stolen held for the

jury. question of circumstantial evidence. Defend

3. CRIMINAL LAW Om759(4)-INSTRUCTIONSant offered an instruction in proper form on

PRESUMPTION FROM POSSESSION OF STOLEN the law applicable to circumstantial evidence, PROPERTY. but the same was refused, and defendant Where there was no direct evidence as to saved an exception. This phase of the case prosecuting witness had placed her, so that the

who took the cow from the range where the was not covered by any other instruction giv- identity of the felonious taker was in issue, an en by the court.

instruction informing the jury of the presumpFrom a reading of the foregoing statement tion arising from the recent exclusive and unit will appear that there was no direct evi. explained possession of stolen property was Jence of defendant's guilt, but that the evi. proper as aiding the jury. dence as to his guilt was wholly circumstan- Appeal from Circuit Court, Taney County; tial. Under such circumstances the defend- Fred Stewart, Judge. ant upon request was entitled to have an in- Fred Nave was convicted of larceny of a struction of this character given, and its re- cow, and he appeals. Affirmed. fusal constituted error. State v. Moxley, 102 Upon an information charging him with Mo. 374, loc. cit. 388, 389, 14 S. W. 969, 15 the larceny of one black cow, the property S. W. 556; State v. Woolard, 111 Mo. 248, of one C. G. Awbrey, defendant was tried loc. cit. 256, 20 S. W. 27.

in the circuit court of Taney county, found [3, 4] III. Appellant contends that the court guilty, and his punishment assessed at two erred in permitting one of the witnesses to years in the penitentiary. Defendant has testify that he overheard a conversation be- duly perfected an appeal. tween defendant and his brother while they The crime was alleged to have occurred on were confined in the jail, and that one of the 23d day of August, 1915. them (the witness did not know which one) Upon the part of the state the evidence said:

tends to establish the following facts: "If you had done what I wanted you to do

Prosecuting witness Awbrey lived on there would not have been anything of this.” farm about one mile northwest of Protem,

Taney county, Mo., and owned a black cow While we are unwilling to say that the and a heifer, which were running out on the admission of this evidence (its substance con

range about two and one-half miles from sidered) would constitute reversible error, Awbrey's home, and about four miles north yet, since the case must be retried, we would of the Arkansas state line. The black COW suggest that it be excluded. Of course, if it weighed about 1,000 pounds, wore a bell, were shown that defendant made the state and is described by Awbrey as follows: ment, it would perhaps be considered bene

"She was a black cow, and had white on her ficial rather than detrimental, and for that belly and white on her flank, and her right

а

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

front foot was white; that is all the white there After placing the two cows in the alfalfa was about her."

field defendant went to a neighboring ranch About the last of July or the first of Au-to get another cow, which he claimed belonggust, 1915, the heifer "came up" without the ed to him, and after returning with the other cow, and the owner never saw the black cow defendant and his helper drove the three cow after that date. Several cattle ran on cows to “Bud Sherald's.” The witness Jenthis range.

The extent of the range is notkins had some cattle whi he also on that day given. The owner made a search, but was took over to Sherald's. After the cattle were unable to find the cow. A road leading driven to Sherald's defendant sold his three from the neighborhood in which Awbrey cows to a man by the name of Brown Morlived went in a westerly direction about rison from Illinois. Jenkins knew that defour miles, passing the farm of one Bud fendant was coming with the cattle because Ellison, and there turned in a more north- the defendant had told Jenkins on the Saturerly direction towards the farm of Lee day before that he was going to drive some Jenkins. The Jenkins farm was four or cattle up to his place on the next Monday five miles north of the Bud Ellison farm. morning, and that they would drive their catOne Sunday night in 1915, and about thresh- tle together over to Sherald's. Defendant ing time, Bud Ellison heard a strange cow did not tell Jenkins from what place he was bell in the road which passed his house. He going to bring the cattle, but the witness predid not see the cow which wore the bell, nor sumed he was going to bring them from did he see any one driving cattle, because home. The witness also testified that the it was too dark. He testified, however, that black cow did not have any bell on her when Awbrey's cattle were not in the habit of defendant drove her up to his farm on that running around his place. In November day. of 1915, C. B. Wood and his son were going A few weeks after the cow disappeared a along the road which runs from the Bud warrant was issued for the arrest of the deEllison farm to the Lee Jenkins farm, and fendant. The next day after the warrant at a point about one mile south of the Lee was issued defendant went to Awbrey's Jenkins farm the boy discovered a cowbell house, told Awbrey that he did not think at the edge of the road. The bell had a small Awbrey had done him right, and that Awbrey piece of leather strap attached which had "didn't get the right fellow.” He further the appearance of having been gnawed by told Awbrey that he had bought the cow rats. The bell was filled with decayed grass, from a man named Sissom down at the etc., which had the appearance of having “Chigre schoolhouse neighborhood in Arkanbeen stuffed into the bell. They took the sas." Defendant also told Awbrey that the bell home with them, and a few months cow he was driving did not have a bell, but later Awbrey, having heard of the incident, that while he was driving the cow on the called at the Wood home, and after describ- night in question an old roan cow wearing ing the bell which was formerly on his cow, a bell followed them some distance near the which tallied with the description of the bell, home of Bud Ellison until he separated the was given possession of the bell. This bell

roan cow from his cows and started the roan was introduced in evidence at the trial and cow in an opposite direction. Defendant told was identified by Awbrey as the bell which Awbrey that he could prove where he bought was worn by his black cow at the time of her the cow by one Abner Pemberton and Richdisappearance from the range.

ard Mullinax, and that Mullinax helped him One Monday morning in July or August, drive the cow that night. 1915, the defendant and another man, un

Mr. Charley Ayers, the constable, testified known to the witness, came to the farm of that after the warrant for defendant's arLee Jenkins driving two cows, one black and rest was delivered to him he was unable to one red, and asked Jenkins if he could get find the defendant; that he went to the a place to put his cows. Jenkins told de home of defendant's father and inquired, fendant to put them in a lot, but defendant and was told that defendant was at another said that he would prefer a pasture. Jenkins place. The constable left word for defendthen told defendant to put them in a nearby ant to meet him at Protem. The constable alfalfa field. Jenkins in describing the cow heard that afterwards the defendant came to testified that she would weigh between 900 and Protem that same day but did not stay. A 1,000 pounds; that “she was a black cow; few days later the constable heard that deI remember she had a little white on both fendant was leaving the country, and folhind feet, and she was black from the top lowed him as far as Bradleyville, but upon to the brisket.” On being further examined arriving at Bradleyville learned that defendas to the white upon the cow, he said, "I ant had taken the hack and departed. don't remember; I remember noticing some

Upon the part of the defense the evidence white on her feet." On cross-examination

tends to establish the following facts: this witness testified as follows:

Defendant, testifying in his own behalf, stat"Q. Which of her feet were white? A. Each led that he was 22 years old, and that in the one of her hind feet. Q. You did not notice any white except upon her hind feet? A. Not summer of 1915 was engaged in farming and that I noticed of any more."

buying and selling stock on a small scale; that

during that summer he bought a "black" cow, went to Awbrey's home, and told him that and a red one from Albert Sissom, who lived he had bought this cow from Sissom, and near the Chigre Hill schoolhouse, in Marion that he would rather that he would take the county, Ark.; that no one was present when matter up with Sissom. When the defendant he made the purchase, but just after the de- returned to his father's house that day he fendant paid for the cattle one Harry Long was told that a constable had been there rode up, and Sissom aid, “Fred (meaning with a warrant. Defendant then went to the defendant), do not say anything about Protem inquiring for the constable, and was buying them cattle for a few days; I owe told that he was gone, and the defendant left some fellows, and I want to leave and work word for the constable that he would be at and I will be back and pay them." Defend home the next morning, and that he lived ant told him that was all right with him. about one mile and a quarter from Protem, On cross-examination defendant testified he and remained at home the next three days. never asked Sissom where he got the cows. About a week after that defendant met one The defendant and Long started down the Roy Davis, who told defendant that he had road, and met Albert Pemberton, and de heard that they were going to have defendfendant told him that he had bought some ant arrested for "carrying a gun,” and adcows, and pointed them out to Pemberton. vised defendant "to get up and get out." While the three were looking at the cows, Defendant said he was needing work, which Sissom came up from the brush and said, fact, together with the advice from Davis, “Nave, I thought you was not going to say caused him to go to Oklahoma. Defendant anything about me selling those cattle;" and also admitted that before he left for Okladefendant replied, “I haven't"; and Sissom homa he knew that the constable had a warsaid, “That is all right.” Defendant tried to rant for his arrest upon the charge of having engage Long to help him drive the cattle out. stolen Awbrey's cow. He testified that Chigre Hill schoolhouse was After remaining in Oklahoma a short time about 312 or 4 miles from the home of Aw- | he went to Columbus, Kan., remaining there brey. In specifically describing the cow the two months, and then went to Iola, Kan., defendant said: "As I said a while ago, I where, after remaining a month, he went to think she weighed 920 pounds, and she had Branson, Mo., and there learned that the some white on her; she was a tolerable grand jury had indicted him for stealing a heavy cow; she was heavy made from the cow; he thereupon went to Forsyth, Mo., shoulders down. I would judge her to be and gave bond. Afterwards he returned to about seven or eight years old.” He further Collinsville, Okl., and remained there most testified that the cow did not have any bell of the time thereafter except for a period on. After buying the cattle defendant said of about two months. He stated that Richhe permitted them to remain where they ard Mullinax now lived in Rush, Ark., and were for about a week, and he found a man he was unable to procure his attendance at who was willing to purchase them if he the trial. He further testified that it was could get them over to Bud Sherald's. He about 15 miles from Chigre Hill schoolhouse, employed Richard Mullinax to help drive the in Arkansas, to the farm of Lee Jenkins, in two cows over there. Mullinax told defend- Taney county, Mo. Defendant also admitant that he could not help him drive the ted upon cross-examination that in 1915, in cattle until after he had called upon his girl | the circuit court of Taney county, he was on the Sunday in question. The defendant convicted of selling liquor in violation of the thought it would be better, on account of the law, and that in 1911, in said circuit court, hot weather, to drive the cows at night any- he was convicted of burglary and larceny. how, and he also went to see his girl. It Harry Long testified that he met defendwas about sundown Sunday before they ant near the Chigre Hill schoolhouse at the started out with the cattle. They drove time in question, and defendant told him that them through by Bud Ellison's, and they had he had bought some cattle from Sissom, and considerable trouble along the road with oth- wanted the witness to help drive them out. er cattle "crowding in” which they would The witness said that there was a dark-lookhave to drive back. At one place he says ing cow there, but that he did not pay much there were 15 or 20 head of cattle following attention. Two other witnesses saw defendthem, among which there was an old roan ant going towards the Chigre Hill schoolCOW wearing a bell. He then tells about house about the time in question. reaching the home of Jenkins about day- Albert Pemberton by deposition testified break, There he left the cows in an alfalfa that on July 16, 1915, he saw defendant near pasture. Later in the day he drove the cows the Chigre Hill schoolhouse, and that deover to Sherald's, and there on that day sold fendant pointed out to him and witness them to Mr. Morrison, who gave him a check Long two cows which he claimed he had on the Bank of Ramsey, Ill. Two or three bought; one of the cows was red and the weeks later defendant heard that Awbrey other was “a large black and white spotted had lost a cow, and some one told defendant one"; that while they were looking at the that a warrant was out for his arrest upon cows Sissom came out and told defendant this charge. The next morning defendant that he did not mean for him to tell about

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