216 Mo. 442 | Mo. | 1909
This is an appeal on the part of the defendant from a judgment of conviction in the criminal court of Jackson county, Missouri, of grand larceny.
On the 28th day of December, 1906, at the September term of the criminal court of Jackson county, at Kansas City, the prosecuting attorney filed, in open court, an information, properly verified, charging Harvey Adair and M. F. Carpenter with the crime of burglary in the second degree and grand larceny. The offense, as charged, consisted in breaking into a toolhouse belonging to C. A. Harris in Kansas City, and taking therefrom numerous carpenter tools, the property of divers persons, of the aggregate value of $113.55. On the 11th day of June, 1907, the defendant was duly arraigned and entered his plea of not guilty. On the 9th day of October, 1907, during the September term of said court, the trial of this defendant, M. F. Carpenter, proceeded. The testimony developed upon the trial of said cause tended to establish substantially the following state of facts:
On the 2d day of December, 1906, the firm of Harris & Hogue, contractors and builders, were engaged in constructing a livery barn for Eyler Brothers at 1712 McG-ee street in Kansas City, having in their employ several carpenters. They had there a small building on wheels, the property of A. C. Harris of said firm, which was used for the purpose of storing the tools of the workmen employed upon said building. At about five o’clock of that day, which was Saturday, the workmen on said building finished their day’s work and assembled their tools in said toolhouse, the door of which was locked by means of a staple, a hasp and a padlock. The next morning the door of said toolhouse was found open, the staple had been
Defendant introduced several witnesses whose testimony tended to prove that on Friday night before the Sunday afternoon in question, defendant went to Pitts-burg, Kansas, distant about one hundred and thirty miles, or about four or five hours’ ride by rail from Kansas City, and that he left Fort Scott for Kansas City after one o’clock on said Sunday morning, arriving at Kansas City about seven o’clock a. m. Defendant himself testified to the same effect, and he said that Sunday morning as he was walking down the street, soon after his arrival at Kansas City, he met a man named Smith with a bundle of tools, who stopped
“Kansas City, Mo., Dec. 3, 1906.
“My name is M. F. Carpenter. I am fifty years old. I am a painter. The last two weeks I have not been working any; my little boy has been sick. My boy is at his grandmother’s at Pittsburg, Kansas; he has been there about three.or four weeks. Yesterday I met a man at Eighteenth and Grand. I did not know the man’s name. I had met him once or twice at Tralle’s saloon. He was a little taller than me, and I think he had blue eyes. He had a package of tools; they were wrapped up' in overalls. It was Sunday morning about nine o’clock. He told me to take them down to the pawnshop and sell them and they would get a drink; for me to just sell them for the best I could get. He said he didn’t want to go to the pawnshop, because he had already sold some stuff there. I took the tools to the pawnshop twice, and got $2.50' altogether. He gave me fifty cents. This man gave me*447 the package of tools I had on me when I was arrested, but I have not seen him since. I never asked him where he lived, or where he got the stuff. I make this statement because it is the truth. No threats or promises have been made to me. M. P. Carpenter. ’ ’
No evidence was offered by defendant as to his general good character.
At the close of the testimony the court fully presented the cause to the jury by its instructions and the cause was submitted to them and a verdict was returned by them finding the defendant guilty of grand larceny only, and assessing his punishment at two years in the State penitentiary.
Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Sentence and judgment were entered of record in accordance with the verdict, and from this judgment the defendant prosecuted this appeal, and the record is now before us for consideration.
OPINION.
The appellant is not represented in this court; hence, we are not favored with any brief or even suggestions of any complaints of error during the progress of the trial.' However, in pursuance of the provisions of the statute which requires this court to examine the record to the end that it may be determined as to whether or not any substantial error was committed, we have carefully considered the disclosures of the record in detail and will give the legal propositions disclosed such attention as their importance requires.
I.
We have examined the information upon which this judgment rests and find that every essential element necessary to constitute the offense is charged
The defendant in this cause was charged in the information with both burglary and larceny, and it has been uniformly held by this court that both of such offenses, while they may be separate and dis-. tinct, if in the commission of a burglary a larceny also be committed, both offenses under the provisions of section 1891, Revised Statutes 1899, may be charged in the same count, and the jury, if the testimony so warrants, may convict of either of such offenses. [State v. Howard, 203 Mo. 600; State v. Owens, 79 Mo. 619; State v. Helms, 179 Mo. 280.]
II.
We have carefully read and analyzed the instructions given by the court in this cause. We deem it unnecessary to reproduce them, and it is sufficient to say that they covered every phase of the case to which the testimony was applicable, and the jury were required to find every essential fact necessary to constitute the offense of which. the defendant was convicted. The jury were plainly told that they might find the defendant guilty of both burglary and larceny, or they might, under the evidence, find him not guilty of one of the offenses and guilty of the other.
After a careful analysis of all the instructions given in the cause we have reached the conclusion that they, in an extremely favorable light, presented the case to the jury in behalf of the defendant.
We have also given attention to the instructions requested by the defendant, and it is only necessary to say that the instructions as given by the court upon which this cause was submitted to the jury, fully covered the subjects embraced in the instructions requested by the defendant; hence there was no error
HI.
We have directed our attention to the disclosures of the record as to the admission and rejection of testimony during the progress of the trial, and find that there were only two instances where exceptions to the admission of evidence were properly preserved, and there is no merit in either of such objections. The first one was an objection concerning the testimony of A. C. Harris as to the ownership of the tool-house. The questions propounded to Mr. Harris and his answers thereto were entirely appropriate, and the testimony was clearly competent. The other objection was an objection to this same witness, A. C. Harris, refreshing his memory as to the numerous tools which had been taken from the toolhouse by referring to a list thereof made by him from memory on the day following the burglary. This memorandum was not introduced in evidence, but the witness simply used it to refresh his memory as to the nature and character of the tools; then he proceeded to testify that those tools were in the toolhouse at the time of the burglary and were taken therefrom. This objection was clearly without merit, and there was no error committed by the court in overruling such objection.
IV.
We have indicated the evidence disclosed by the record upon which this cause was submitted to the jury, and that it furnishes full support to the verdict returned by them is too plain for argument. The evidence being entirely sufficient to support the verdict of the jury, and the court having fully and fairly presented the case to them by its instructions, and it not appearing from any other disclosures of the record that any error was committed during the progress