State v. Short

An appeal in a civil case is deemed perfected when the trial court makes the order granting the appeal, the docket fee is paid and a perfect transcript of the record and proceedings in the case is filed with the clerk of the appellate court, or in lieu of such complete transcript a certified copy of the judgment and the order granting the appeal is filed in such appellate court. [Sec. 2048, R. S. 1909.]

It follows that an appeal in a criminal case is not perfected until the appellant files with the clerk of the appellate court a complete transcript of the record proper, and also a certified copy of the bill of exceptions (unless the appeal is based upon some error in the record proper); or in lieu of such transcript a copy of the judgment appealed from, as well as a copy of the order granting the appeal. Neither of these things was done by the defendant in the case at bar within twelve months next following the granting of his appeal; therefore, his appeal was not perfected within the time expressly limited by the statute.

Of course, if the failure to perfect his appeal within the year granted him by law was the fault of the circuit clerk in not preparing the transcript in a timely manner, or the fault of any person other than the defendant or his attorneys, such fact might furnish ground for overruling the motion to dismiss, but the defendant files no brief in this case and makes no showing in opposition to the motion of the Attorney-General.

The motion to dismiss will be sustained and the appeal dismissed. It is so ordered. Walker and Faris, JJ., concur.

State v. Maggard.

THE STATE v. MACK MAGGARD, Appellant.

Division Two, May 20, 1913.

1. LARCENY: Substantial Evidence: Matter for Jury. Where there is substantial evidence of defendant's guilt of stealing the horses, and also substantial evidence that he is not guilty, and the evidence is in such shape that if the State's is true he is guilty, and if defendant's is true he is an innocent and persecuted man, the question of his guilt was a matter for the jury, whose province it is to determine the credibility of witnesses in a law case.

2.

-: Recent Possession of Stolen Property: Presumption. The possession of a stolen horse recently after the theft, and the sale thereof, by defendant, is a circumstance coupled with a presumption, which impose upon him the duty to satisfactorily account therefor.

3. CIRCUMSTANTIAL EVIDENCE: Instruction. An instruction upon circumstantial evidence should substantially advise the jury that the circumstances proved must be consistent with each other and with the hypothesis that the defendant is guilty, and inconsistent with the theory of his innocence and with every reasonable hypothesis except that of guilt. And an instruction which tells the jury that "before you can convict the defendant on circumstantial evidence alone, the facts and circumstances must all form a complete chain and point directly to the defendant's guilt and must exclude every reasonable theory of defendant's innocence," while inartistically drawn, meets the requirement of the rule.

4. EVIDENCE: Acta Inter Alios: Lugged in by Appellant. Where appellant has lugged into the case matters inadmissible, he cannot complain that the witness in redirect examination repeats the statement. An error courted by appellant, or induced by his action, or brought about ex necessitate, becomes a part of the interlaced facts and is not reversible error. Where there were two horses stolen, one of which was soon afterwards in the possession of defendant Maggard and the other in the possession of his brother, both of whom are jointly indicted for the larceny, a witness for the State who had bought one of the mares from the brother was asked on cross-examination why he had stated to a witness for defendant that the mare he had bought from the brother was a stray, and replied: "Mr. Maggard told me if I told anything about this he would blow my head off." Held, that it was not reversible error for the State to ask the witness on redirect examination: "I will ask you if about that time your life was threatened if you told where you got this

5.

6.

State v. Maggard.

mare?"-for several reasons: first, the context shows that the "Mr. Maggard" who had threatened the witness was not the defendant, but his brother, and it was therefore harmless error; second, the question related to res inter alios, and was, therefore, inadmissible, but it was induced by defendant's question, and hence he cannot complain; and, third, the threat interlinked itself with defendant's theory of defense.

Impeachment: Rehabilitation: Cognate Acts and Statements. Where a witness is impeached by proof of variant. acts and statements, relevant evidence of the witness's prior statements corresponding with his testimony are admissible for the purpose of rehabilitation. Where two mares were stolen, and one was afterwards in defendant's possession and the other in his brother's possession, and defendant's theory is that one Compton stole both and sold them to him and his brother, and Compton testified for the State that he bought one of the mares from the brother and when he afterwards learned she had been stolen returned her to him, and defendant undertook to impeach Compton by detailing various statements made and acts done by him, it was not error to permit the State in rebuttal to sustain and rehabilitate Compton as a witness by permitting another witness to testify that Compton had engaged him to keep a lookout for and buy a horse for him and had later told him before the theft of the mare became public that he had bought a horse from defendant's brother and that he need not therefore keep a further lookout for a horse for him.

-:

By Acts and Statements: Rehabilitation by Proof of Reputation. Where defendant has sought to impeach a State's witness by proof of his former acts and statements, the State is entitled to prove by witnesses that the general reputation of the witness for honesty, truth and veracity is good.

Appeal from Douglas Circuit Court.-Hon. John T. Moore, Judge.

AFFIRMED.

lant.

Dooley & Hiett and Patterson & Mason for appel

John T. Barker, Attorney-General and Thomas J. Higgs, Assistant Attorney-General, for the State. (1) There was ample evidence to warrant the verdiet returned by the jury. The contention that the

State v. Maggard.

verdict was against the evidence is without any merit and does not deserve the consideration of this court. (2) That the verdict of the jury is against the law as declared in the instructions given by the court is a contention that could not be seriously argued in this case and was only raised by appellant as a matter of form. (3) The court instructed the jury on all the necessary points of law in the case as required by statute and in acordance with the many decisions of this court. State v. Conway, 241 Mo. 285. (4) The court did not err in admitting irrelevant, illegal and incompetent testimony on the part of the State.

FARIS, J.-Defendant was indicted in the circuit court of Douglas county for grand larceny; being convicted and his punishment being assessed at imprisonment in the penitentiary for a term of four years, after the usual procedure in such cases provided, he has taken and now prosecutes this appeal.

The larceny specifically charged was horse stealing. Defendant was jointly charged in this behalf with four others, but upon the defendant's application therefor, a severance was granted to him and he was separately tried on September 26, 1912.

The horses alleged to have been stolen were the property of one Orey Bennett, who resided about four miles from the town of Vanzant in Douglas county. Some three weeks prior to the alleged theft, defendant, with one of his co-defendants, Abe Emery, came into the neighborhood in which said Bennett resided, for the purpose of purchasing cattle, and while so engaged remained in that neighborhood about a week, boarding with one Johnathan Emery, the brother of Abe.

The cattle which defendant and Emery purchased were kept in the lots of said Bennett. The defendant, it appears, must have become well acquainted with one

250 Mo.-22

State v. Maggard.

of the stolen horses; namely, a certain mare, called in the testimony, a "solid sorrel mare;" for there is proof that he offered to trade a gray horse which he was then driving for said sorrel mare of Bennett's.

Defendant Maggard and Emery left this neighborhood with their cattle about the 22nd of June, 1910, and on the night of July 13, 1910, the two mares of Bennett, which are alleged in the indictment to have been stolen, disappeared. Search was made extensively for these mares and some two months later one of them, called in the testimony "the sorrel mare with the white face," was found in Ozark county; and some eighteen months thereafter, to be exact, in February, 1912, the "solid sorrel mare" was found in the pasture of Dave Coram in Linn county in this State. The testimony shows that Coram purchased this mare from defendant sometime about the last of September, 1910; that about the 25th of August, preceding, defendant had come to the farm of one A. H. Stone, a neighbor of Coram, and whom defendant had known years before, and began work for Stone as a farm hand. Defendant, during the summer of 1910, made his home with his brother, Will Maggard, who is his co-defendant here, and who resided somewhere in Greene county. On the farm of Will Maggard, the proof tends to show, in the early days of August, 1910, at a secluded place, near some empty buildings, and in a small hollow among the bushes, there were found plain indications of horses having been kept.

The theory of defendant, as is clearly disclosed by the testimony of defendant, who as a witness testified for himself, was that defendant purchased the mare which he afterwards sold to said Coram from one Ed Compton, who resided about three miles east of Springfield, and was apparently a neighbor of Will Maggard, the brother of defendant. The other of the two mares in question, namely the "white faced sorrel mare,' was for a time in the possession of said Compton, but