*1 SupReme 316. You. Goddard, Appellant. The State v. William Two, 20, Division December 1926. proprietors testify 1. BURGLARY: Failure Proof. Where the during alleged burglarized when the doors morning ncCone saw failure of morning to have been windows were all locked and secured and the next breaking, were still locked and was no evidence of any enter, attempting total in the store or is a corpus delicti; six and evidence that about standing defendant sack was seen front of the store with a bacon, jam oranges containing like with cost marks similar to those on store, store with articles sold intent to commit is no evidence that he broke a crime. Breaking: Under the amendment 2.-: To Commit Crime. 1921, 1919, 1921, 3297, Revised made Act of Laws building Section Statutes 196, degree page it is to break into commit Burglaries. charged -: Other In the trial a defendant 3. store, testimony pre- burglarizing a that about three weeks of witness viously, the same night, he saw behind counter o’clock at any purpose. lighted, while it was It. not tend to other crime. does establish 58, p. 1033, Juris-Cyc. Burglary, J., Corpus n. p. Section References: 9 C. 123, 47; 132, 17; 15; 1074, p. 1064, p. n. Section Section Section n. 31; 7; p. p. n. n. 38. n. Section Kelly, Cape Circuit Court.—Hon. Frank Appeal Girardeau Judge. AND
Reversed
remaNded..
appellant.
Montgomery
M.
and M. G. Gresham for
E.
(1)
upheld
Before a
can
the evidence must
conviction
someone,
and the
the crime
has been committed
Scott,
agency
in its
criminal
commission.
424;
110;
Joy,
State
243 S. W.
285 S.
Bowman,
Mo.
v.
Knolle,
App. 238;
Counts,
v.
90 Mo.
State
State
v.
v.
v.
Rutledge,
State
DeWitt and
State
v.
Jones,
Hammons,
Madison,
191 Mo.
v.
226 Mo.
State
State
(a)
suspicion
347.
And
that defendant committed the
charged,
will
strong,
support
a conviction.
crime
however
Morney,
Francis,
Young,
196 Mo.
King,
209 Mo.
Johnson,
(b)
extra-judicial
An
confession of the defendant will not
Goddaed.
proof of the
the absence
support
conviction
Bowman,
Mullinix, 257
delicti.
reversible
(2)
It was
(1)
no
the
of
There is
evidence of
evening
the
were locked when
store testified that
doors
alleged burglary, and that
after the
before the
the
alleged burglary
closed and locked. There is no
the doors were
evi-
any breaking through
dence that
the windows or otherwise.
there was
(2)
any goods
missing
no
There is
evidence that
the
possession
of
stock merchandise. The sack found in the
of the de-
having on them the cost marks of the
fendant contained articles
burglary,
larceny.
But now the defendant is
store.
question is,
substantial
to show such a
evidence
breaking
entering
burglary?
as to constitute
“It will be ob-
offense provided
served
the essential elements
the
breaking
be a
First,
section arel:
must
the
character
the statute.”
Taylor,
mentioned
intent.” Mo, cannot-prove against,a defendant 585. “The State separate punishment, for a alleged either as foundation crime not guilty of even aiding proofs charged, he is though Spray, his in issue.” State put he has character 1. c. 748. Dickson, Prosecuting Attorney of RAILEY, C. On November county County, circuit court of said a verified in Scott filed which, omitting parts, formal reads as follows: formation Prosecuting Attorney Stephen Barton, “Now within and comes County prosecutes Scott, for the who in behalf and in upon his Missouri, upon name of officialoath and his the State of court, appended present, informs the oath, hereunto does aver Goddard, the said William on. or about the day County August, Scott, 30th at the- said a. d. State of break into and *3 by and T. enter the of owned A. -Essner and Diebold, J. F. doing business under firm name of Essner & Company, Brothers situate, in there the same which divers goods, mer- things kept chandise and valuable were then and there and sale deposited, intent merchandise and with valuables in the being, said store then and there then feloniously and there and bur- glariously steal, carry away; take and pounds and thirteen of bacon forty per jar pound, of cents jelly value of jar and one jam each; thirty-five of of of the value cents two cans of corn of the twenty each, oranges of two dozen value cents of fifty the value of per dozen, graham cents and two boxes crackers of the value ten per box, aggregate all of cents value of seven dollars and fifty cents, personal goods property and of the said T. A. Essner Diebold, J. in and F. then and there the said being, store and then and steal, take and carry away; con- trary to form of in the statutes such eases provided made and against peace dignity and and of the State.” application, change On defendant’s granted venue was the cause transferred the Circuit Court of Cape Girardeau County, jury. April where it was tried On before 1926, defendant was arraigned in the last plea named court entered a guilty. following Thereafter, day, on the same verdict was returned: jury find the defendant
“We, William Goddard guilty of punishment charged and we assess his by imprisonment penitentiary years, for a term of two and find the defendant larceny in guilty connection with and in addition to tfie punishment punishment we assess his for a term years.” of two y. GoddáRd.
im] trial, for a new his motion filed Thereafter, in due May 1926, defendant May 3, 1926. On overruled on whieh was sentence, was sustained. his for a reduetion filed motion prosecuting witnesses and recommended It was indorsed attorney. day, On the same allocu- prosecuting case, and the pronounced for and sentence granted, judgment rendered tion was penitentiary. years punishment fixed at two burglary, and the charge. appeal An attorney larceny prosecuting The waived the allowed defendant to court. respondent, as fairly counsel for follows: stated effect that the store
“The of the State was burglarized Chaffee; the town of to have been was located $25,000 goods, general large containing it was a worth merchandise; six on the that about standing 1925, a across the street from the store saw some witness store; man approaching man entrance to the that this walked the front building being into an back about five off-set, the doors to the set building. This feet the front line of the witness did not see the man enter the store and did not know whether he went police judge not. The then went to the residence of the witness building. close and told him that was some one in judge got up hurriedly dressed came out on the recognized street with revolver his hand the man who standing then as this sidewalk defendant. The man with the gun testified that the defendant had a sack on his shoulder and was looking up police judge appeared down the street. .When the revolver, defendant ran 'his around the corner of the store dropped running the sack and continued until out of sight. him and The officer followed when he came close to the build- ing hiding, said, where the defendant was ‘Don’t shoot, *4 coming I am out.’ put The officer arrested him and him in jail, back and found sack which, opened, then came the when was seen bacon, piece to contain a jars Swift’s some canned and A jelly. clerk in the store testified that the marks on these various put there him to show the price articles were cost articles; the they the in that resembled carried stock in the store. The wit- seeing this man about ness who testified to six o’clock in morning, the prior that to that about four also testified o’clock the same morn- go ing, man into the front he saw some entrance of building; the store slam; that heard the door that he did not he know who it was who pay in and did attention to it went not at that time. of the above occurrence definitely
“The time fixed all the morning day 30th August. witnesses the permitted “Another witness to that prior three weeks passing this at 2:30 .that time he was store to at SupReme op You. objected building. this The defendant saw the store an that it was for testimony to the reason the introduction of for that reason crime, and attempt to distinct separate show a objection the over was not was admitted competent, but the of the defendant. they the left
“The that when of the store testified all locked building' were the, evening1 doors prior to the morning after the They and secured. further that testified alleged burglary locked, there was no evi doors and that were doors or windows. dence ‘‘ working away from The defendant that in testified he night; every that he Saturday home the railroad and came home got imme- Sunday August 30th, home 2:30 and went morning, about diately bed; got to and went up that he bakery; place open he started back was not that way and went to have home of the store burglarized; got in been that when front the store he saw he sitting by door; thought sack that he there was someone they outside; and that store left this sack on the that he tried had locked; just approach- door found that it was that as he was ing the street; picked up saw man he some across the that he trying the sack and looked across the street man had see the who before, been there him; thought minute but did not see that that he might sack; he be the man who left the that about that time someone half dressed came out with a street and two revolver with him; they men did officers; that he not know they were officers; not look like thought hollered at him and that he going shoot, he ran then around the corner and dropped house, the sack and hid under a and when the man gun came and under, looked recognized first time he him as the officer and said to him. shoot, ‘Don’t I coming am out.’ The defendant denied further had been in all; the store at denied he had goods; stolen the denied he had been three weeks to that time. “The wife defendant’s testified that the defendant came home work; about 2:30 got from his up that he about 5:30 and went to bakery. She further testified that the defendant had been af- year flicted for a or two and had right not been mentally; that on just several occasions prior August 30th, he had crazy; acted get he would lost in own their house it would take long- her a get straightened out; time to him great that on a many nights he go bed, would all up night.” but would sit remaining questions the case will be considered in *5 opinion. v. Goddard. is set out is heretofore information I. Tlie larceny was larceny. The burglary
charged with voluntary action from the case finally eliminated Failure of pending here attorney. case is prosecuting of the Proof. information is suf- burglary alone. The charge of Tipton, as to both substance. ftcient form and [State 271 W. l. c. cited, c. 507-8 and cases l. 57.] by Laws as amended
Section Revised Statutes page 196, reads as follows: entering breaking and
“Every person who shall be convicted of any entering shall not be declared building, breaking and of which or by any degree, in the -first statute of this State to be tent, any any car in which vessel, booth or or boat or or railroad wares, at the human there shall be time kept in- thing deposited, merchandise or other valuable with the shall, therein, conviction, tent steal or commit crime on adjudged guilty degree.” in the second given by required find, beyond
Instruction the court doubt, evidence, reasonable from the County, Missouri, burglariously Scott “did break into and bwilding Diebold,” enter the store T. A. Essner and F. J. with the carry away steal, goods intent take and some located said building, purposes case, etc. For it may of the be conceded that the information and supra, the instruction were sufficient as to degree. But what of the evi- in support charge? dence Attorney-General of said and his assistant, with frankness, pertinent commendable answer this in- quiry as follows:
“1. any breaking; There is no evidence of testified that the doors were locked evening when alleged burglary, before the after the alleged burglary the doors were closed and locked. is There no evi- any breaking through dence the windows or otherwise. any goods “2. There no evidence missing from the possession stock of merchandise. The sack found in the of the de- having fendant contained articles on them the cost marks of the ’’ store. But now the defendant is with burglary, larceny. carefully "Wehave read the evidence and have no hesitation in in- dorsing respondent’s the above statement of counsel. There was an proof utter failure of to establish the delicti this case. In same, order was necessary to establish the for the State to beyond a that defendant, reasonable doubt one, or some on the date aforesaid, broke into said with the intent commit a aught appears crime. For from the evidence, the few dollars sack, worth of found in the if were ever in said 316 Mo.—12. *6 Missouri, Vol.
178 SUPREMECouRT business, bought ordinary course of building, may been have only failed State not by burglary. The being obtained instead of tending defendant bur- to show that produce substantial to building aforesaid with the on the date glariously into said broke is an failure of committing crime, a but there entire intention of building date, said or was in the on proof tending to show that he from the store in the commission tha1 said ever stolen four, in its instruction informed otherwise. The court law, presumed contemplation of defendant was to that, convict, find innocent, jury, in order to would have to be aforesaid, burglarious evidence, defendant, on the date from the building stealing goods ly with the intention of broke into said viewpoint conjecture, from the of even therefrom. Considered by legal proof prima-facie signally make a case bur State failed glary degree. Capps, 695; 278 the second [State 274 Buckley, Tallo, 469; 274 S. W. State v. S. W. State Good son, 321, Hays, 299 252 Mo. State v. Whalen, 241, 297 248 Mo. S. W. v. Casey, 247 S. W. Pope, 246 Bowman, S. W. State v. 294 243
S. W. 294 Singleton, State v. S. W. Remley, S. W. Hollis, Morney, 196 Mo. l. c. S. W. 1117.] Whalen, In we reversed and remanded the cause account of the failure of the information burglariously broke into said bank build- ing, etc.
In Casey, and following, we reversed and cause, remanded for the reason that the evidence—as in this case—failed to show that defendant was ever in bank building burglary larceny actually had where occurred. decided,
When these cases were it constituted in the sec- degree if ond a man broke into the to commit felony, changed law but the in 1921, as heretofore set out, and it degree is now made in the second person if a breaks into to commit extending Without this discussion further, hold, we that the record is devoid of substantial evidence sustaining of bur- glary degree.
II. The court is with error in permitting Williams, Frank railroad, a fireman on the that three weeks August 30, 1925, and about 2:25 or 2:30 o’clock the morning, he saw defendant above while it was lighted, behind the Padgett. objected counsel de evidence was counter. This time and trans fendant, it referred to different because Other Acts. subject- way no connected with action, litigation. The above matter alleged shown, if another could
any purpose. Even here, which it to determine the facts stated is not Williams, burglary or any Frank tend to establish do *7 It was robbed at that is not claimed shown signally The fails to show defendant that broke into time. all; building crime, commit he broke into it at It building present, dues show, the owners were not nor lighted show, doing does it tend to store was anything connection, improper. testified, In this building time, never broke the above and denied that building he was as testified to Frank Williams. Even if true, the Essner as stated prove guilty Williams, burglary by it did not that he was into the at that nor did' it tend to show that he broke into 1925. foregoing clearly The evidence of Williams was should have been excluded.
III. On pointed out, account the errors heretofore we reverse cause, proceeded remand with in conformity expressed. Higbee, views herein C., concurs. PER opinion foregoing CURIAM.: —The C., adopted Railey, is All opinion judges the court. concur. Padgett, Appellant. John B.
The State v. Two,
Division December 1926. LIQUOR: Transportation: 1. transportation is illegal INTOXICATING Information. intoxicating liquor sufficiently charged if the language creating defining made of the statute offense. It is not place information state from or what liquor being transported. City 2. ARREST: Without Warrant: Power Marshal. marshal city of a empowered, of the fourth class is a officer as such is warrant, any person violating presence without to arrest in his law city. city, judicial of the State or And the courts will take notice that having population requisite as shown United the census .the States, city is a of the fourth class. Discovery Felony: -: For Misdemeanor: No Warrant: Trans- Liquor. porting officer, empowered arrests, arresting If make