
    The State v. Earl Moore, Appellant.
    95 S. W. (2d) 1167.
    Division Two,
    June 30, 1936.
    
      P. M. Marr for. appellant.
    
      Boy McKiltrick, Attorney General, William W. Barnes and James L. EornBostel, Assistant Attorneys General, for respondent.
   COOLEY, C.

Appellant and one Lee Griffith were charged jointly, by information filed in the Circuit Court of Linn County at Linneus, with the crime of burglary and larceny. Appellant, whom we shall refer to as defendant, was granted a severance and was.tried alone. The jury found him guilty of burglary and not guilty of larceny, assessing his punishment for the burglary at two years’ imprisonment in the penitentiary. He was sentenced accordingly and, after unavailing motion for new trial, has appealed.

The evidence was wholly circumstantial. The State’s evidence tended tq show the following:

Guy Johnson, the prosecuting witness, lived at the west edge of Purdin, in Linn County. He owned a farm adjoining Purdin on the west on which, about a hundred yards west of his house, he had a feed lot of three or four acres. A graveled highway runs west from Purdin along the north side of the feed lot. In the "feed lot Johnson had a cattle shed and two comcribs, one of which cribs, the one here involved, was about one hundred and fifty yards from the highway. A gate opened from the feed lot onto the highway about directly north of the crib.

Defendant, á farmer, lived with his family about three and a half miles west and north, mostly west, of Purdin. As we understand the record his residence was a half or three quarters of a mile north of the "graveled highway, on a public road, not surfaced,, which turned off the graveled highway. His residence could be reached from Purdin by one or two other routes, one of which, as described in the evidence, was to go north from Purdin, then west and south, the respective distances not being shown. The most direct way was by the graveled highway and the north and south road above mentioned which passed "his residence.

Johnson’s corncrib was broken into and a quantity of shelled yellow com was stolen therefrom on the night of May 24, 1935. The State’s evidence indicates that the offense was committed in the early morning of May 25th, before daylight, as a witness, living, about an eighth of a mile west of Johnson, heard an automobile pass his house about three-twenty that morning. His testimony tends to show that the ear came from the west, stopped half an hour or so in the vicinity of the gaté north of Johnson’s crib, and then went on east.

Johnson was feeding cattle and hogs in his feed lot. When he went there to feed his stock on the morning of the 25th he discovered that the' door of his crib," which he had left fastened the evening before, had been opened and some com had been taken. The State’s evidencé sufficiently shows that" a: burglary and larceny had been committed after -he left- the "crib the evening before. He discovered two sets'of men’s-footprints leading from the gate'at the highway to near the crib and back to fhe highway, and in the highway, between tbe e&gte Of tbe gravel and tbe gate, tbe trá'cks of an áhto-mobile which bad evidently pnlled off tbe graveled portion of tbe highway and stopped at tbe gate. Tbe ground there and in the feed lot was soft enough froia recent rains to take and retain the impression of tbe automobile tires and footprints. Tbe footprints nearest tbe crib bad been trampled out by tbe stock but tbe evidence justifies a finding that tbe men who made them bad gone from the gate to tbe crib and thence back several times; Johnson said tbe tracks indicated that five or six trips bad been made. Another witness said that the tracks indicated- at least four trips.

Johnson promptly notified the officers, who, on the 25th, went to defendant’s residence, armed with a search warrant, and -searched tbe premises. ' They found seven sacks of shelled 'yellow com, estimated to contain ten or twelve bushels, in bis smokehouse. They 'also took from him the shoes he was wearing, — ordinary work shoes. Tbe Shoes bad composition soles, with certain described markings on tbe bottoms of heel and sole. Those markings are not shown to have been peculiar to that particular' pair of shoes, but appear from tbe State’s evidence as well as that of defendant, to have been iniade in the process of manufacture and characteristic of that make of soles and heels. Tbe State’s evidence tended to show that one set of tbe above-mentionéd footprints bad impressions that “compared” With tb'oSe markings on tbe heels and soles of defendant’s shoes, and that bis shoes were placed in some of the tracks of that set of footprints and wére found tó fit the imprint. Soil containing One heel imprint, —but not that of the sole, — was taken up and preserved, and, together With tbe shoes, was introduced in evidence. There was no evidence tending t'o'show that defendant’s shoes were 'of'an Unusual size or bad any markings or deformities from repairs, wear or otherwise. Without further detailing the evidence as to the. footprints it may be said that tbe evidence would warrant a finding that one set- was made by defendant’s sboés or by a pair of similar size and with similar heel and sole markings. The other set of tracks was máde by shoes with smooth Soíé's. - : '

Tbe automobile tracks are not described as having any particular markings. They are described thus: “There was two -or three different tires ofir'this car. ■ That is, smooth tracks and some wasn’t so smooth. ’ ’ The witness who thus described them, the sheriff, found ; similar ear tracks “turning off' the: gravel north - of Purdin and turned baek south . . -. and went on'south and turned-back west towards Mr. Moore’s house.” He said there is a public road that leads to'MOore’s house. “Q. Where were these car tracks that you found with reference to the road-'to- Mr. MooreV house ? -A. The last tracks that I seen was east and a little south of Mr. Moore’s house.” He did not shy on what road the tracks went west or on what road he lost them. From his description it could hardly have been on the north and south road that runs from the graveled highway northward past defendant’s residence, because he said he last saw them “east and a little bit south” of Moore’s house. He did not say how far east.

Another witness testified that he saw car tracks .similar to those observed at the above-mentioned gate, at the intersection of the graveled highway afid the road leading north therefrom past defendant’s home that had been made by a car turning east toward Purdin from said north and south road onto the graveled highway, or vice versa.

Defendant owned a Chevrolet coupe automobile. It was observed and examined by the officers when they searched his premises on May 25th.. No evidence was offered as to the kind, or markings, if any, of its tires, or the kind of tracks they would make.

As to the corn: — ^Johnson testified that on April 23, 1935, he had bought from Merle Wolf a truckload of shelled corn and another truckload from Leon Smith on April 25th. Both loads were yellow corn,-but that bought from .Smith had a slightly darker or brighter hue. than the other. It'had in-it some grains with a “reddish cast,” and had some rat droppings in if. Both loads were- placed in. the same'bin in his. crib, -the- Smith .corn on top. In taking out corn to feed he would scoop from the floor of the bin and the corn, rolling down, would become mixed. If the pile of com was “dug into” from- the top, not too deep, — only one kind, that containing the grains with a reddish cast and the rat droppings, would be obtained. He thought the thieves had “dug into” the pile of com, not scooped it from' the- floor of the bin, because, while he had paid no attention to the appearance, of the corn pile when he fed his stock on the evening of the 24th, there appeared to be a depression in the top or upper part of the pile on.' the morning, of the 25th, as though some com had been taken therefrom. He-estimated that ten or twelve bushels .had been taken but he based that estimate, according to his testimony, chiefly (if not, according to a fair construction of all his testimony, entirely); on the number of trips that had evidently been made by the thieves-from the gate to the crib. He professed no knowledge or information as to the kind or size of receptacles used by the thieves in carrying away the corn.

The'com found in defendant’s smokehouse had some rat'.droppings in it, and some of it contained grains with a “reddish cast” similar to that, bought by Johnson from Smith. Samples of corn taken from Johnson’s crib and from defendant’s sacks were introduced in .evidence. Johnson, — naturally—-could and did not attempt to, positively identify the corn found in defendant’s .possession as his-com. He did say, “It either came out of my .crib or came out of the crib that mine came out of in Iowa.” “Q. If Mr. Moore bought some -corn from a truck that came from Iowa and you bought some from a truck that came out of a crib in Iowa, it would look alike, wouldn’t it? A. Yes, sir.”

There was a good deal of evidence relative to the identity of the corn found in defendant’s possession and its resemblance to Johnson’s corn. The best that can be said of it is that it showed that the alleged stolen corn “resembled,” as one witness put it, the corn in Johnson’s crib, and that it could have been Johnson’s corn.

Defendant’s evidence.

On behalf of defendant "Wallace Pulliam, a clerk in the shoe department of the Purdin Mercantile Company at Purdin, testified that on May 8, 1935, he sold defendant a pair of shoes exactly like those that had been taken from defendant by the- officers and introduced in evidence; that the books of the company so showed; that that brand of shoes was a very common brand and had been carried in stock and sold by the-Purdin Mercantile Company, at Purdin, ever since he had worked for the company, — at least five years; “we have handled this same design on the sole, I am sure, for a year anyway; ’ ’ that for three months or so prior to May 25, 1935, said company had sold at Purdin an average of thirty to forty pairs a month of shoes with the- same sole and heel- design as those of defendant’s shoes.

The Purdin Mercantile Company also had a store at Linneus, about five miles south of Purdin, in which O. H. Helms handled the shoe sales. Helms testified that that store carried the same brand of shoes, with the same heel and sole design, had been doing so for several years, “as long as I can remember,” and that prior to May 25, 1935, said store had been selling about twenty-five pairs per month of such shoes; that shoes of sizes 7, 8' and 9 of that brand have the same size of heel and that one could not tell by looking at the heel print whether the size was 7, 8 or 9, — the difference would appear in the length and width of the sole. Helms said he could not tell exactly the size of the shoes shown him (defendant’s) by looking at them; that his judgment was they were size eight, but could be seven and a half or eight and a -half. He said the same heel and sole design that appeared on defendant’s shoes had been used on that brand of shoes for about a year.

Defendant, testifying for himself, said that on the night of May 24th he was at home all night and was not out in a car anywhere. His wife' corroborated him in this. Defendant further testified that he did- not know of any car having left his place that night. He testified that he had bought the corn found in his smokehouse off a truck on the • 26th of April, previous, and had received from the seller a receipt for the payment. He identified the receipt,- which was introduced in evidence. It showed a sale on April 26, 1935, !by C. H. Anders to defendant of eleven bushels and forty pounds of shelled corn, at $0.97, $10.83, signed C. H. Anders. Defendant testified he had met Anders, who had a truckload of corn, and whom he did not then know, near the Farmers’ Exchange at Browning, about six miles north of Purdin; that he arranged to buy some corn, to be delivered to him at a place called Mark Gooch corner about two miles north of Purdin, where a dirt road turns pff a graveled highway leading from Browning; that he met Anders and his associate, J. W. Hendrix, at that place with a team, and wagon and there received and paid for the corn, which was weighed out on small scales, took it home and put it in his smokehouse, where the officers found it.

Anders testified that he lived at Green Castle, in Sullivan County, and was engaged in trucking com from Iowa to Missouri and had been delivering.com in,Sullivan and Linn counties for some time* that he and Hendrix were in Browning with a full truckload, and defendant came to the truck and wanted to buy ten or twelve bushels. Anders said he could not pull his full load off the graveled highway, the dirt .roads being spongy, and agreed to meet defendant at the Mark Gooch corner, which he and Hendrix did-, the defendant meeting them there with a team and wagon; that the corn sold to defend- and was-put in sacks brought by defendant, weighed, paid for and at defendant’s request he signed and gave to defendant the receipt offered in evidence; that the samples of corn shown him, which the sheriff had taken from defendant, looked like the corn he had sold to, defendant. Hendrix, who was with Anders when the sale and delivery of the corn was made to defendant, gave testimony similar to that -of Anders. Both testified that the com sold to defendant had rat droppings in it and that some of it had a reddish east.

We. have mentioned • that defendant had a Chevrolet coupe automobile.. When the officers examined this car .on May 25th they found some grains of yellow corn on the floor of the car. Defendant testified that he had bought the car, second hand, from the Chevrolet Company at Brookfield four or.five weeks.prior to May 25th and that the.grains of corn were then in it; that the former, owner had hauled com and coal and other things in it. .

In rebuttal James Cooper testified that he lived across the road and about one hundred yards from defendant’s residence; that on the night, of May 24th, at half past nine o’clock, he saw a car.go south from defendant’s premises; ‘‘I was fixing to go to bed and there was a car coming up in the road and waited, and a truck,'waiting there on the gravel.” “Q. Whereabouts from the house did it pull out? A.. Pulled out right south of the house... There-is a main lane that.comes out west and goes south. Q. Could you tell what sort of a body it had on it ? Whether it was a touring car or coupe or what? A. Ford coupe or Chevrolet. One seated car.” It was dark and he could not tell who was in the car. In this connection it should be stated that there was no evidence of any truck tracks having been observed near the above-mentioned gate or in the vicinity of defendant’s residence or elsewhere.

In our opinion the evidence is not sufficient to sustain the verdict. As we have said, the evidence was wholly circumstantial. In such case in order to warrant conviction the circumstances proven must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of the defendant’s guilt, but must be inconsistent with every other reasonable hypothesis, including that of his innocence. [State v. Wolff, 337 Mo. 1007, 87 S. W. (2d) 436, 440, and cases cited.] The rule is well established. In the instant case three major- circumstances must be relied upon, viz: — the footprints of the men who apparently committed the crime, the automobile tracks and the supposed identity of the com found in defendant’s possession with that stolen from Johnson.

Johnson did not, and obviously could not, identify the corn as his. As we have stated, the best that can be said of .the testimony on this point is that it showed that said corn found in defendant’s possession resembled Johnson’s corn and could have been his. Defendant gave a plausible,- and, if true, a reasonable and satisfactory explanation of his possession of that corn. Granting that the truth of defendant’s evidence was for the jury and not to be considered in determining the question of submissibility of the case, the State’s evidence fails to exclude the hypothesis that defendant ■ may have had corn of his own similar in appearance to that of Johnson. Johnson’s statement that the corn taken from defendant either came out of his crib or out of the some crib jn Iowa wa,s,. obviously, .a mere opinion or conclusion, based on similarity of appearance and, perhaps, the presence of rat droppings in the corn. Rats abound everywhere. in this part of the country. That shelled corn was being trucked into Missouri from Iowa for sale is shown, by Johnson’s testimony. He had bought from two men, both of whom had trucked corn into Linn County from Iowa for sale, and neither, so far as the evidence shows, specifically for him. The inference is clear (without taking judicial knowledge of conditions existing at that time), that there was a shortage of corn in Linn County which was being supplied by com brought in from Iowa. Under the circumstances, we may well say, as was said in a somewhat similar case in State v. Emry (Mo.), 18 S. W. (2d) 10, 11 [3]: “The similarity of the corn in defendant’s possession to that taken from the crib is not sufficient to make a submissible case,” citing 36 Corpus Juris, 907, and notes. ■ In that case there, were other circumstances tending to show the. guilt of the defendant. In this case, as in the Emry case, other circumstances must be considered.

The automobile tracks do not connect defendant with the crime. They were not traced to his premises and there is no evidence as to the kind of tires that were on his car or that they would make tracks like, those observed near the gate. Moreover, if defendant’s car had a truck bed or rear compartment of any sort capable of holding seven sacks of corn containing a bushel and a half or so apiece the fact was not developed by the evidence. The only description of the car we find is that it was a Chevrolet coupe, — a “one seated car.” It seems hardly possible that those seven sacks of corn (perhaps more, — there were two thieves) could have been transported at one time, with two men, in an ordinary coupe or one seated car.

"We think, too, that the footprints referred to, taken in connection with the other circumstances shown, are not sufficient to exclude a reasonable hypothesis of defendant’s innocence, and to warrant a finding of guilt beyond a reasonable doubt. Were the footprints and other allegedly incriminating circumstances unexplained we might have a different question with which to deal. But they are not unexplained. We have referred to the evidence of defendant tending to explain his possession of the corn found in his smokehouse. As to the footprints, the testimony of Pulliam and Helms, unimpeached and which can hardly be doubted, tends to show that thére must have been scores of shoes worn in that community which could have made the imprints found at the scene of the crime. We are not unmindful of the rule that in determining the question of submissibility of a case the State’s evidence, with such inferences favorable to the State as may legitimately be drawn from' facts proved, ■ is to be taken' as true, and the evidence of the defendant contradictory thereof is to be disregarded. We do not mean to be understood as overturning or criticizing that rule. But in the instant case, recognizing the rule, we think the State’s evidence fails to measure up to the equally well-established rule that where the evidence is wholly circumstantial it must exclude every reasonable hypothesis of the defendant’s innocence. Applying the latter rule, the State’s evidence tends to prove that the footprints in question could have béen made, — -it may even be conceded that' they' may have been made — by defendant’s shoes. But there is no showing that they may not, with fair likelihood, have been made by other similar shoes. So far as the State’s evidence shows, defendant’s shoes were ordinary work shoes, such as may have been worn by many men in the’ community. There was no evidence that they were of peculiar or unusual size or shape, or that they had any markings or characteristics, such as from repairs, wear, etc., that- would cause them to- make imprints' peculiar to that individual pair of shoes as distinguished from imprints made by other shoes with similar heel and sole design," put ón the market by the same manufacturer. In State v. Freyer, 330 Mo. 62, 48 S. W. (2d) 894, 899 [6], it is said, “Indeed, there is authority for saying the circumstance alone that a man’s shoes fit certain tracks is no proof he made the tracks, where the shoes are of average size, such' as are worn by a great many people of the community.”

We recognized the fact that, ofttimes, crime must be proved and can only be proved by circumstantial evidence and that the probative value of such evidence should not be minimized. But we must also bear in mind that a person may not legally, be convicted of crime and deprived of his liberty on mere suspicion, — even strong suspicion, — of guilt. The proof must warrant a finding of the .defendant’s" guilt, beyond reasonable doubt, and when, as here, it is wholly circumstantial, it must exclude any reasonable hypothesis of his innocence. After careful consideration of the evidence in this cáse we are of the opinion that it does not' measure up to these requirements.

In view of the possibility of another trial certain criticisms of some of the instructions should be noted. The instruction on alibi is criticized because, appellant claims, it assumes, instead of requiring the jury to find, that the offense charged had been committed. Without setting out or analyzing the instruction we suggest that if the ease is tried again said instruction be modified so as to obviate any question of that character. The instruction, as given may be subject to the criticism made, — -a point we heed not determine,.since any such question on another trial can be easily avoided. Approved precedents for an alibi instruction can readily be found in reported cases.

Appellant complains of the refusal of his requested Instruction C, on circumstantial evidence. The court instructed on circumstantial evidence and, while appellant complains of the' given instruction as “constricted” and inadequate, we would not be inclined to reverse "on that ground. Appellant’s requested instruction might well enough have been given, as more adequately expressing' the law of circumstantial evidence applicable to the facts of the case than the one given, but for the fact that' it would have required the jury to find that the defendant, “and no one else,” committed' the offense charged. There was evidence that two. men committed the. offense. If defendant was one. of those inefi he was guilty even though another was also guilty. The requested instruction might have been confusing and misleading to the jury and was properly refused for that reason.

'Appellant complains of the giving of Instructiofi No. 7, which reads: '

‘ ‘ ‘ The court instructs the jury that it is not essential to the guilt of this defendant that he did actually take, steal and carry away the corn from the crib of Guy Johnson. If you find from the evidence that someone broke into and entered the crib,- if you find and believe said crib was broken into and entered, or that someone else took, stole and carried away the corn, from said crib, and that the defendant was present for the purpose of aiding and assisting in the act, and did anything toward the taking, stealing and carrying away of said corn, or any part thereof, you, will find the defendant guilty..’ ’ ’

'Under the issues in this case we think this instruction was misleading and erroneous. Defendant was charged with burglary and larceny. In order to constitute burglary the breaking and entering must be with intent to steal or to commit some other crime in the building broken into. [Sec. 4048, R. S. 1929, Mo. Stat. Ann., p. 2849.] In this ease there must have been an- intent to steal, since there was no evidence from which any other criminal intent could be found. The jury was not required to find that [¡he breaking and entering, if any, was done with criminal intent, but only that someone “broke/into and entered the crib,” or- (in the alternative), that someone other than defendant stole corn therefrom and that the defendant was present for the. purpose of assisting “in the act” (which act, — 'the breaking or the stealing?) — and did anything toward the stealing.- If the facts were so found the jury -was directed to find defendant guilty, • — not ■ merely of .the larceny but guilty generally, -which included the burglary, The State’s evidence was.sufficient, if believed by tfce, jury, to warrant the finding .that whoever broke into the crib did so with intent to steal and that whoever did the breaking did the stealing also. But the State’s instructions cannot assume, the truth ,of the State’s evidence, — in this case, that the breaking, if done, was done, burglariously. If someone else first broke open the crib, defendant not being .accessory, thereto,- and then defendant, or he an.d- .another, Without, committing -burglary, stole corn therefrom, the offense w-as only petit larceny, -because the value of the com stolen was under $30, The court, by another instruction, submitted the offense, of. petit .larceny, also directed the jury that it might find defendant guilty of- burglary-and not guilty of larceny or guilty of larceny and,not guilty of burglary, or guilty of both burglary and larceny. The jury found him guilty of burglary and affirmatively found bim not,guilty of grand larceny, — that .is larceny committed-in connection with the burglary, ...

The judgment pf the. circuit court is reversed and the cause. is remanded,

Westhues and Bohling, CC., concur.

PER CURIAM;

The foregoing opinion by Cooley, C,, is adopted as the opinion of the court.

All the judges concur.  