State v. Dale

141 Mo. 284 | Mo. | 1897

Sherwood, J.

— The defendant (a negro) under an indictment for burglary and larceny, was convicted of the former offense in the second degree, his punishment assessed at three years in the penitentiary, and he appeals to this court.

The indictment charges: “That Bud Dale on or about the twenty-seventh day of March, A. D. 1895, at the county of Vernon and State of Missouri, did then and there feloniously and burglariously break into and enter a certain building of A. E. Forderhase by then and there forcibly breaking the glass, and spreading the iron bars apart at the back ^ of the window of said building there situate, in which divers goods and other valuable things were then and there kept for sale and deposited, with intent the goods, chattels, wares, merchandise and other valuable things in said building then and there being, then and there feloniously and burglariously to steal, take and carry away, and fourteen plugs of Old Virginia Weed natural leaf tobacco of the value of one dollar and forty cents of the personal property, goods and chattels of the said A. E. Eorderhase, then and there in said building being found, did then and there feloniously and burglariously steal, take, and carry away, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Missouri.”

Section 3526, Revised Statutes 1889, the one upon which the indictment is intended to be drawn, is as follows : ‘ ‘Every person who shall be convicted of breaking and entering: IHrst, any building within the curtilage of a dwelling house, but not forming a part thereof; or, second, any shop, store, booth, tent, warehouse or other building, or any boat or vessel, or any railroad car in which there shall be at the time some human being, or any goods, wares, merchandise or other valuable thing kept or deposited, with intent to steal or commit any felo'ny therein, shall, on conviction, be adjudged guilty of burglary in the second degree.”

1. The testimony shows that the tobacco stolen was “Letgo,” and “Green’s Virginia Leaf,” while the indictment charges the tobacco stolen to have been “Old Virginia Weed Natural Leaf.”

This discrepancy between allegation and evidence is immaterial for the following reasons:

In the first place defendant was not found guilty of larceny.

In the second place, even if defendant had been found guilty also of larceny, the difference between the allegata and the probata would amount to nothing under our statute (section 4114, R. S. 1889) unless the court before which the trial was had had found that such variance was material to the merits of the case and prejudicial to the defense of the defendant. State v. Barker, 64 Mo. 282; State v. Wammack, 70 Mo. 410; State v. Sharp, 71 Mo. 218.

2. The indictment was found at the April term, 1895, and charges that on or about the twenty-seventh of March, 1895, the burglary and larceny were perpetrated, and the evidence shows this allegation as to date was correct. In the month of March, 1895, after the burglary had occurred and after the occurrence had become public, defendant, with some of the same kinds of tobacco that Eorderhase had in his store, came to Joe Manon in his father’s store, and whispering to Manon, wanted to sell him some of the tobacco, a bundle of which he had in his pocket, saying he was selling it for a white man in the alley, and that all he would get out of the sale would be a drink. He finally sold several plugs to Thomas for sixty cents. Other testimony of like sort was sufficient to warrant the verdict found by the jury.

And the recent possession of the fruits' of a burglary, unless countervailed or rebutted in some way, is presumptive evidence of the commission of that crime, just as in cases of larceny. State v. Babb, 76 Mo. 501. And although the prosecuting witness will not swear that the goods are his, yet it is sufficient to go to the jury if he swears they resemble his. Ib. The facts of this case then are sufficient to support the verdict returned by the jury.

3. But notwithstanding the foregoing views, the sufficiency of the indictment remains to be considered. It will be observed that the indictment gives no name to the building. If it was necessary to prove the kind of building it was, then by the same token it was necessary to allege it. Every fact and modification of a fact which is legally essential to a prima facie case of guilt, must be stated. In order that a party accused may know what a thing is, it must be charged expressly, and nothing left to intendment. All that is to be proved must be alleged. 1 Bish. New Grim. Proc., secs. 81, 519.

And the law proceeding in that beneficent spirit which presumes innocence until guilt be established, will presume that, what the indictment does not charge does not exist. State v. Barbee, 136 Mo. 440, and eases cited.

The section of the statute in question contains two clauses. Under the first the indictment must charge that the building is “within the curtilage of a dwelling house, but not forming a part thereof.”

Within the second clause, the indictment must charge that the building is a shop, store, tent, etc., giving its correct designation, because in a case of statutory breaking, the indictment must employ the statutory word as shop, store, office, etc. And if to such place the statute adds a descriptive phrase, it must be covered by allegation. 2 Bish. New. Crim. Proc., sec. 136; Com v. Tuck, 20 Pick. 356.

The indictment before us is bad, therefore, under 5 either clause of the section upon which it' is based. State v. South, 136 Mo. 673; State v. Schuchmann, 133 Mo. 111.

And it affords no intimation under which clause of that section he will be prosecuted, nor will the judgment rendered afford defendant any protection against further prosecution. The point of the insufficiency of the indictment has not been raised by defendant’s counsel, but discharging our duty of examining the record, we could not omit to discuss such obvious insufficiency as the indictment presents.

Because of this defect, the judgment must be reversed and the cause remanded.

All concur.