State v. Davis

73 Mo. 129 | Mo. | 1880

Hough, J.

The defendant was indicted for burglary in the second degree and larceny, and was acquitted of the burglary, but convicted of the larceny, and sentenced to three years’ imprisonment in the penitentiary. The goods charged to have been stolen were alleged to have been taken from a store and to be of the value of $32. The two offenses were charged in the same count, under section 1301 of the Revised Statutes.

It is contended for the defendant that under the provisions of said section he could not be convicted of the larceny unless he was also convicted of the burglary. Tins point has been'expressly adjudged to the contrary in the following cases: State v. Alexander, 56 Mo. 131; State v. Turner, 63 Mo. 436; State v. Barker, 64 Mo. 282; 2 Arch. Crim. Prac., 328, 329. In the case of the State v. Beckworth, 68 Mo, 82, relied upon by defendant’s counsel, the indictment failed to state the value of the goods stolen, and it was held that when the larceny was committed in the perpetration of a burglary,- the value of the property stolen was unimportant and need not be alleged, and that under such an indictment there cáuld be no conviction of tne larceny unless the defendant was also found guilty of the burglary. The distinction taken rests upou the fact that in an indictment for simple larceny, it is essential to allege the value of the property taken. State v. Pedigo, 71 Mo. 443. And as there can be no conviction for a larceny committed in the perpetration of a burglary, when no burglary has been committed, neither can there be any conviction for a simple larceny under an indictment charging burglarious stealing unless the value of the goods taken shall have been alleged. In the indictment before us the value of tbe goods is alleged to be over $30, and under it the defendant could have been convicted of either grand or petit larceny, without regard to the burglary.

Only á portion of the. goods stolen was found in the possession, of tbe defendant, but this fact, in connection with'other concurring circumstances, was sufficient to warrant the jury in finding him guilty of stealing them all. State v. Barker, 64 Mo. 282. The case was fairly submitted to the jury, and the evidence is sufficient to support a conviction. The judgment will, therefore, be affirmed.

The other judges concur.