This is an appeal from a judgment of the circuit court of Jackson county sentencing defendant to twenty-five years in the penitentiary for the offense of burglary with explosives, as that offense is defined by section 4526, Revised Statutes 1909.
The information charges defendant and one Stevens with burglariously and feloniously breaking and
Defendant was tried separately. The evidence for the State tended to show that defendant and Stevens were rooming together on East Seventeenth street in Kansas City for some days prior to the commission of the offense of which the former was convicted; that about 11 p. m. on the night of January 10th they were seen together in a saloon at 2400 East Eighteenth street, three doors from the saloon subsequently burglarized and again at 2:45 a. m. on January 11, 1911, were seen, not together but about the same time, at the corner of Eighteenth and Olive streets whence defendant proceeded north and Stevens
I. The information clearly and with particularity charges defendant and Stevens with breaking and entering the saloon in the nighttime and the substantial sufficiency of this part of the information is not assailed except it is suggested that it should have concluded “against the peace and dignity of the State.” There is nothing in this contention. The burglarious breaking and entering is, under section 4526, but one element of an entire offense which consists of both such entering and the subsequent use, in the burglarized building, of certain explosives for the purpose of
The insistence most earnestly made is that there is no sufficient allegation that nitroglycerin or other high explosive was, after the building was entered, used “for the purpose of committing a crime.”
The information, after charging the unlawful and burglarious entry, alleges that nitroglycerin or some other high explosive (unknown to the prosecuting attorney) was used by defendant “for the purpose and with the felonious intent then and there of breaking into and demolishing a certain iron safe, the property of Powers and Beghtol,” and that by such means the safe was actually broken into and demolished.
The destruction of “any building or other property” of another by the use of explosives is declared a felony by section 4599, Revised Statutes 1909 and the part of the information quoted sufficiently charges defendant with employing nitroglycerin, etc., with the intent to destroy the iron safe and with actually so destroying it, and, consequently, sufficiently charges the use of such explosives with intent to commit a crime under the section mentioned. A reasonably precise statement of the elements of the offense which defendant, after his burglarious entry, intended to commit by the use of the explosives is all that is necessary, and the minuteness of allegation which might be demanded in an indictment for the commission of such offense is not required. [State v. Stubblefield, 157 Mo. l. c. 362.] It is true that the safe was doubtless blown open for the purpose of stealing its contents arid that the information might have been drawn so as to charge such an intent. It' is entirely possible,
II. The sufficiency of the evidence is challenged. We are asked to subtract from the whole the testimony of Shoemaker, who saw defendant running from the saloon building immediately after the explosion, and then hold that the remainder will not sustain the verdict. It is said in the briefs that the morning of January 11 (at 3:15) was cloudy and that the moon was not as high as Shoemaker said it was and that, consequently, his testimony must be. ignored. This court cannot take judicial notice of the presence of clouds in the sky at a given time. As for the phase of the moon, it appears it was three quarters full and well above the horizon at the time mentioned. The discrepancy between the memory of the witness and the almanac as to that luminary’s exact position in the heavens was, in the circumstances, for the consideration of the jury in determining the credit to be given the witness’s testimony. We are not warranted in holding otherwise than that the evidence is entirely sufficient to support the verdict returned.
III. The court instructed on the substantive law of the case, circumstantial evidence, alibi, reasonable doubt, the presumption' of innocence and the credibility of the witnesses. No additional instructions were asked and no exceptions were saved to the form or substance of those given. The instructions given dealt
The judgment is affirmed.
PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.