209 Mo. 452 | Mo. | 1908
On the 1st day of August, 1907, at the July term, 1907, of the criminal court of Greene county, an indictment was returned against the defendant charging him with burglary in the first degree. At the same term, and on the 23rd day of August, 1907, defendant’s attorney filed a motion asking for the appointment of a lunacy commission to inquire into the mental condition of the defendant, which motion was overruled by the court. On the same day the defendant, by his attorney, filed application for a continuance, which was overruled. The defendant, being formally arraigned, stood mute and refused to plead, whereupon the court ordered a plea of not guilty entered, and, on the same day, defendant was put upon trial and convicted, his punishment being assessed at sixteen years in the penitentiary. Defendant’s motions for a new trial and in arrest having been overruled, he appealed.
The evidence on the part of the State tended to prove that defendant and his wife, Maud Horn, were divorced in May, 1907, on the petition of the wife, who retained custody of their child, aged about four years. After the divorce, the woman and her child went to live with her father, Jacob Head, who' resided near Ash Grove, Greene county, Missouri. On Sunday, July 14,1907, Maud Horn and her child were at the home of John Smith, about three-quarters of a mile south of Jacob Head’s home. About nine o’clock in the evening of that day the defendant, in company with one Morris-sett, arrived in a buggy at the Smith home and inquired for Maud, his former wife, and the child. Stella Smith, daughter of John Smith, thought the defendant was intoxicated, and she told him that Maud,and the baby were at the home of Vet Head, Maud’s brother, across the creek. Defendant and his companion drove away,
It also appeared in evidence that within a week prior to said July 14, 1907, the defendant called two or three times at Smith’s house and saw his child, and brought it ice cream, candy, shoes and stockings. On those occasions Maud, his former wife, was present, and there was no trouble or unpleasantness, and the Smith family, Maud and the defendant were all on good terms.
The defendant testified in his own behalf that he was twenty-six years of age, that he and his wife first had trouble in February of the same year, and that it was brought about by his wife’s parents. His wife, he said, applied for a divorce on April 10, 1907, and it was granted her while he was in jail at Bolivar, Missouri, on a charge of attempting to kill his child, which charge had been brought by his wife’s. brothers. That the day he got out of jail he went to Jacob Head’s to see his child, and Mr. Head would not let him see
It is said for defendant that the court erred in overruling his application for a continuance, which he insists was in due form and in compliance with section 2600, Bevised Statutes 1899. The motion for a continuance was filed on behalf of the defendant, and sworn to
Another alleged ground for continuance was that one Emerson, residing in Polk county, Missouri, was a material witness for the defendant, and that his testimony, if obtained, would be that the defendant, even before the commission of the alleged offense, was possessed of the idea that some members, of the family of his wife were intent on taking his child, Florence Horn, away from him, and that defendant further seemed to be possessed of the idea to. kill the child rather than let it be so taken from him by a conspiracy between his wife and her relations, as defendant believed they had so conspired to do; that said idea of defendant was a delusion, but that defendant verily believed the same to be true. As to this witness, no subpoena was asked for him, nor for time to secure his attendance at the trial, although, as shown by the affidavit, he was a resident of an adjoining county. We think the showing as to this witness was also insufficient.
The affidavit further states that four witnesses, A.
Defendant contends that the element of intent to commit a felony was absent at the time of the breaking and entering of the Smith home, and that an intent formed after such breaking will not constitute the offense of burglary in the first degree.
Section 1880; Revised Statutes 1899; defining burglary in the first degree, declares that “every person who shall be convicted of breaking into and entering the dwelling house of another, in which there shall be at the time some human being, with intent to commit some felony or larceny therein, first, by forcibly bursting or breaking the wall or outer door, window or shutter of a window of such house, or the lock or holt of such door, or the fastening of such window or shutter; or, second, by breaking in any other manner, being armed with some dangerous weapon, . . . shall be adjudged guilty of burglary in the first degree.”
In determining the question of intent upon the part of the defendant in breaking into the Smith home, the
Defendant next insists that the demurrer interposed by him to the evidence at the close of the State’s case should have been sustained. The ground iipon which this contention is based is that from the time the defendant broke into the house a period of fifteen minutes had elapsed before he did anything which even squints at an assault or the consummation of a felonious intent. This, like all other facts in evidence, was for the consideration of the jury, and as there was ample evidence to take the case to the jury, there was no error in overruling the demurrer.
It is said for defendant that proof of statements of a third party (Morrissett) made after the defendant had been in the Smith home for sometime, and after Stella Smith, the girl against whom the defendant was charged to have the felonious intent, had left the house, constituted no part of the res gestae and amounted to hearsay testimony. The record shows that the court sustained an objection to the introduction in evidence of a conversation had between witness Maud Horn and Morrissett, who was with defendant, and came into the house after Stella- Smith had left, so that defendant seems to be in error in saying that such testimony was admitted.
Finding no reversible error in the record, we affirm the judgment.