145 Mo. 674 | Mo. | 1898
At the February adjourned term of the circuit court of Christian county for the year 1897,. the following indictment was duly preferred against the defendant C. M. Burdett:
“The grand jurors of the State of Missouri, impaneled, sworn and charged to inquire within and for the body of Christian county, upon their oath present that O. M. Burdett, late of the county and State aforesaid, on the twenty-seventh day of March, A. D. 1897, at the county of Christian and State of Missouri, did*677 then and there unlawfully, feloniously and burglariously, with the assistance and aid of one or more confederates, then actually present, aiding and assisting, break into and enter the smokehouse of one W. E. Thrower, by then and there feloniously and burglariously forcibly bursting and raising the latch of the outside door of the said smokehouse there situate, the said smokehouse being a building within the curtilage of the dwelling house of the said W. B. Thrower, in which dwelling house then and there resided the said W. E. Thrower and family, and the said smokehouse not being or forming a part thereof, the said dwelling house, in which said smokehouse there was then and there kept divers of goods and chattels, and with the intent then and there feloniously and burglariously to steal, take and carry away six middling pieces of hog meat of the value of twenty dollars, of the personal property of the said W. E. Thrower and one J. W. Morris, then and there in the said smokehouse being found, and did then and there feloniously and burglariously break into and enter the said smokehouse in the manner aforesaid described, and then and there feloniously and burglariously steal, take and carry away the said six middling pieces of hog meat of the property and value as aforesaid described, against the peace and dignity of the State.”
The defendant demurred to this indictment and his demurrer having been overruled, he was duly arraigned and entered his plea of not guilty. Upon a trial he was found guilty of burglary in the second degree, and sentenced to three years imprisonment in the penitentiary. Erom that sentence this appeal is prosecuted.
I. At the threshold of our investigation of the errors alleged to have been committed by the circuit court we are confronted with the proposition that the
Upon examination of the transcript we find the motion for new trial is not made apart of the bill of exceptions, nor is it called for in the bill by defendant; It does indeed appear that in the record proper the clerk has incorporated a motion for new trial and the order overruling it. But nowhere, in the bill of exceptions was any exception taken or preserved to the action of the court in overruling the motion.
It has long been held by this court that motions for new trial, and in arrest of judgment, application for continuance and instructions were not a portion of the record proper, and unless made a part of the bill of exceptions would not be noticed by this court. State v. Griffin, 98 Mo. 672, and cases cited. Being no part of the record proper, it necessarily followed that they could only become part of the record by proper exceptions. State v. Gilmore, 110 Mo. 1.
Erom these rulings it results that in legal contemplation there is no motion for a new trial in the record, and this court in a long line of decisions has held that it will not consider objections to the action of the circuit courts which were not brought to the attention of the circuit court by a motion for new trial. Ross v. Railroad, 141 Mo. 390; Cowen v. Railroad, 48 Mo. 556; Matlock v. Williams, 59 Mo. 105; State v. Murray, 126 Mo. 526; State v. Harvey, 105 Mo. 316; R. S. 1889, sec. 4221.
II. The sufficiency of the indictment alone remains to be considered.
This indictment is evidently intended to charge an offense under section 3526 of Revised Statutes of 1889.
Holding as we do that every indictment must contain and set forth every necessary ingredient of the offense sought to be charged, we think this indictment distinctly charges the place, to wit, “at the county of Christian in the State of Missouri,” and the felonious and burglarious breaking and entering into a smokehouse “there situate” and fully met the requirements of the' statute and the decision of this court in the Schuchmami case, supra, in averring that said smokehouse was zoithin the curtilage of the dzoelling hozise of W. E. Throzoer, but was not. a part thereof.
It remains only to add that it was entirely competent to convict the defendant of burglary without convicting him of larceny also. State v. Brinkley, and Handly, 146 Mo., p.-.
Perceiving no error in the record, the judgment is affirmed.