111 Mo. 257 | Mo. | 1892
Defendant was convicted in the circuit court of Butler county of both burglary and grand larceny. The charges for both of these offenses were contained in one indictment. He was sentenced to ten years for burglary and two years for larceny, in accordance with the verdict of a jury, and appealed to this court.
Defendant was charged in the indictment with breaking into and entering the dwelling-house of Theodore Vandover, in which there was at the time a human being, on or about the fifteenth day of June, 1890, by unlocking an outer door of said dwelling-house, by means of a false key, with intent to steal certain money, and with having stolen therefrom $100, the property of the said Theodore Vandover.
Some time in June, 1890, the money was taken. Defendant had worked for Yandover during the month of June. While there he had been detected fitting or trying a key to the lock of this lumber room. When arrested in August he had $115 in his possession, which he apparently tried to conceal. He expressed a willingness to the officers who arrested him to return the money to Yandover. He undertook to explain his possession of the money by saying that he had sold some land to his mother who had paid him the money. There was no evidence of the burglary except what arose by implication from these facts.
I. The first assignment of error is that the indictment is defective in not alleging that the offense was committed at any certain time. This assignment is not well taken. Under our statute no distinction is made between a burglary of a dwelling-house, whether committed by day or at night, and consequently there is no reason as at common law to charge in the indictment the hour at which the offense was committed. Revised Statutes, 1889, sec. 3520; Bishop on Criminal Procedure, sec. 131; 2 Bishop on Criminal Law, sec. 101.
II. It is insisted in the second place that there is no proof that the building alleged to have been entered was a dwelling-house, or any part of a dwelling-house.
“At common-law the mansion or dwelling-house in which burglary might be committed was held to include the outhouses, such as warehouses, barns, stables, cowhouses or dairyhouses, though not under the same roof or joining contiguous to the dwelling-house, provided they were parcel thereof, or within the curtilage.” 2 American & English Encyclopedia of Law, 673; 2 Russell on Crimes, 15; Bishop on Statutory Crimes, sec. 278.
This has been changed by our statute, which provides that- “no building shall be deemed a dwelling-house or any part, of a dwelling-house within the meaning of the foregoing provisions (relating to burglary) unless the same be joined to, immediately connected with and is part of a dwelling-house.”
We think there can be no doubt that the room in which the burglary was alleged to have been committed was a part of the dwelling-house within the meaning of the statute; it was included under the same roof, and was connected by a porch on each side with the room in which the family resided. The room was not used for any purposes, which, at common law, would have been inconsistent with being a part of a dwelling-house.
The statute does not, in terms, require that the connection between the part of the building used as a dwelling and the part burglarized should afford internal communication. Ro internal communication was
III. Objection is made that there is. a variance between the given name of the owner of the building and of the money alleged to have been stolen, as charged in the indictment and as proved on the trial. The statute, we think, fully provides for such variances. It says they shall “not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find such variance is material to the merits of the case, and prejudicial to the defense of the defendant.” Revised Statutes, 1889, sec. 4114. This objection should, in the first instance, have been made to the trial court. State v. Sharp, 106 Mo. 109; State v. Ballard, 104 Mo. 634.
We are unable to see wherein the defendant could have been prejudiced by this variance. The gist of the offense consisted in breaking and entering the house with the intent to steal, and it was not necessary to prove the ownership of the property as laid. State v. Tyrrell, 98 Mo. 354.
IY. We are of the opinion that the circumstances proved, with the admissions of the defendant, sufficient to authorize a submission of both charges of burglary and larceny to the jury. It is true there was no direct proof of the breaking or unlocking the door; but, as it was kept locked, the money was taken from the room and defendant had been detected fitting a key in the lock, the jury might infer that he unlocked the door. The admission, if made by defendant that he had the money of the prosecutor, if it was sufficiently proved
Y. While the statute allows a joinder of the charges of burglary and larceny in the same count in the indictment, when committed together, they are still separate and distinct offenses, and the jury may find the accused guilty of either or both. Revised Statutes, 1889, sec. 3529; State v. Hecox, 83 Mo. 537; State v. Owens, 79 Mo. 620; State v. Kelsoe, 76 Mo. 505; State v. Martin, 76 Mo. 337.
It is made the duty of the court to instruct the jury on all questions of law arising in the case whether asked or not. State v. Palmer, 88 Mo. 571. It was clearly the duty of the court to instruct the jury upon the law of both larceny and burglary. The court did instruct the jury as to what their verdict should be in case they found defendant guilty of burglary alone, and what it should be should they find him guilty of both burglary and larceny, but wholly omitted to inform them that they might acquit of burglary, and convict of larceny, and what their verdict should be in case he should be found guilty of larceny alone. In this omission the court committed reversible error. State v. Hecox, 83 Mo. 537, and cases cited. For this error the judgment is reversed and cause remanded.
