226 Mo. 604 | Mo. | 1910
On the 25th of September, 1908, the prosecuting attorney of Douglas county, began this prosecution by information, charging the defendant with burglary and larceny in having broken into, in the nighttime, and stolen from the storehouse belonging to the estate of J. W. Johnson, deceased, located in the town of Gardner, in Douglas county, on the night of the 10th of August, 1908, about ten dollars lawful money of the United States belonging to the postoffice at Gardner, and between five and ten dollars in money and some other personal property belonging to the estate of J. "W. Johnson, deceased. The defendant was arrested and on the 31st of March, 1909, filed his motion to quash said information on the ground that same did not state any offense against the laws of the State of Missouri, nor designate the ownership of the building alleged to have been burglarized, nor the goods and wares taken therefrom, nor who was the owner of or in possession of said storehouse, or the said goods and wares, and because the information did not
It appears from the evidence that the storehouse and postoffice building in which the alleged burglary was committed had formerly belonged to a man by the name of J. W. Johnson, who had died November 25, 1907, and that the burglary occurred on the night of August 10,1908. The postoffice at Gardner was kept in this store building. There were a number of articles, including a lot of shoes, some razors, pocket-knives, cloth and twenty-five or thirty dollars in money, the latter consisting largely of quarters, dimes, nickels, and pennies, stolen and taken away. Defendant was at the store the day before the burglary and traded two chickens for some soap, soda, tobacco and cartridges. He lived about four miles from the store. On this occasion Miss Oma Johnson, a daughter of the deceased merchant, waited on him, and they agreed entirely as to the character of his purchases, except she did not remember that he bought a nickel’s worth of cartridges, number 38, but on the preliminary trial she testified that she would not swear that he did not buy the cartridges. Defendant had traded at this store for four or five years, and always paid his bills there, as well as at other stores in the neighborhood. In payment for his purchases on this occasion he tendered Miss Johnson a ten-dollar bill, and she gave him back change to the amount of $9.80, after crediting him with the value of his two chickens. It seems that on Thursday after this burglary on Monday night, one Henry Strong, who had been called in by the constable to assist in searching for the stolen goods, found a piece of cloth, which was identified as a part of the stock
There was a mass of immaterial evidence injected into the case as to the defendant’s ownership of money about that time, and’ it was developed that in June the defendant had sold a cow for eighteen dollars, and some weeks earlier a calf for six dollars, and that he usually paid for his groceries with his poultry and eggs. It was also shown that he traded in furs and pelts. It would serve no good purpose to repeat this great mass of unsatisfactory testimony.
At the close of the testimony the defendant requested the court to instruct the jury to acquit him, which the court refused.
The court instructed1 the jury that: “if they find from the evidence that the defendant, in the county of Douglas and State of Missouri, on or about the 10th
I. The crucial question in this case is whether there was any substantial evidence upon which to submit the guilt or innocence of the defendant to the jury.
The defendant was a young married man and lived with his wife and two small children about four miles from the town of Gardner, in Douglas county. On the night of the 10th of August, 1908, the store in which the postoffice was kept in Gardner was burglarized, and some goods and wares therein and the moneys belonging to the store and to the postoffice were stolen. After the burglary, a searching party, it would seem, found a piece of cloth in the neighborhood where the defendant lived, in a hollow log about four hundred yards from the defendant’s house. This log was out in the open woods, and not within any inclosure over which the defendant had any authority, or of which he was in any way in possession. This piece of cloth was found on Thursday after the burglary on Monday. With no other evidence tending to show the defendant guilty, a search warrant was issued and by virtue thereof the constable of that township searched the defendant’s house, which was a one-room log cabin 14 by 16 feet. In an open cupboard in a little cloth poke he found about twenty dollars, some'of it.in dimes and nickels, and five number 38 pistol cartridges. The money consisted of a five-dollar bill,
In State v. Belcher, 136 Mo. l. c. 137, it was said by this court: “The recent possession of stolen property raises presumption of guilt, but what.constitutes recent possession which will justify this instruction is a preliminary question for the court. It is the settled law of this court that to raise this presumption the stolen goods must be found in the exclusive possession of the prisoner. [State v. Castor, 93 Mo. 242; State v. Warford, 106 Mo. 55; State v. Scott, 109 Mo. 226; State v. Owsley, 111 Mo. 450.] ” In the Belcher case, as in this, the larger part of the goods were found in the possession of another, and the remainder in the home of the defendant’s mother, and there was no evidence to indicate that the defendant had any other possession than that shared by the family in common, save and except as to a pair of overalls and a pair of shoes, and it was a question whether these were a part of the stolen goods, and it was held not to be exclusive or recent enough to justify this instruction. The doctrine announced in that case was followed in State v. Drew, 179 Mo. 315.
It is obvious in this case, we think, that unless a presumption of guilt is indulged because the piece of cloth was found out in the woods, not the property, or in the possession of the defendant and not under his control in any way, and at a distance of four hundred yards from the residence of the defendant, then there is absolutely nothing upon which to hinge the guilt of this defendant of this alleged burglary. It goes without saying that the mere possession by the defendant of something less than twenty dollars, when he was shown to have sold property exceeding that amount
II. But there is another ground upon which this judgment must be reversed, and that is that 'the information did not charge the ownership of the burglarized store in any person capable of owning the same. The information charged “that the defendant did break and1 enter into a storehouse belonging to the estate of J. W. Johnson, deceased.”
In Beall v. The State, 53 Ala. 460, the indictment was for burglary and alleged a breaking and entry ‘ ‘ of the dwelling-house of the late John Tate, said house now, and at the time of the offense committed, belonging to the estate of the late John Tate.” Said the court: “The common law requires that an indictment for burglary must lay with precision the ownership of the house in which the offense has been committed, and the proof must conform to the averment. [2 L. Cr. Cases, 53; 2 Bishop, Cr. Pr., secs. 135, 136, 137 and 138; 2 Wharton, Cr. L., sec. 1555 et seq. 1 Russ., Crimes, 806.] The statutes have not abrogated or modified this rule. . . . That which is intended as an averment of ownership shows on its face that the ownership is not disclosed. If the person described as John Tate is dead, and that is the intendment, and during life was the owner of the dwelling, on his death it devolved on his personal representatives, heirs or devisees. Who these are is not averred. ’ ’ The court
In People v. Hall, 19 Cal. 425, the court said: “The indictment charges the property as that of an estate. This is insufficient. The charge should be of altering the brand of the animal as that of a particular individual, or that the owner of the animal was unknown.” See also 22 Cyc., 354.
This has been the uniform ruling of this court. [State v. Ellis, 119 Mo. l. c. 438; State v. Jones, 168 Mo. 398; State v. Horned, 178 Mo. 59.] It follows that this information was insufficient to sustain the sentence, even had the proof been sufficient to connect the defendant with the crime. But the evidence fell short of connecting the defendant with the crime, and the judgment of the circuit court is therefore reversed and the defendant discharged.