95 Mo. 76 | Mo. | 1888
The defendant was indicted and convicted in the circuit court of Jasper county of larceny in dwelling-house and sentenced to the penitentiary for two years.
The indictment charged the defendant with feloniously stealing a pair of shoes at the county aforesaid, the property of one Robert Ow.ens, in the dwelling-house ■of the said Robert Owens, then and there being. The testimony tended to prove that the defendant stole the ■shoes ; that they were of the value of eight dollars ; that they were the property of Robert Owens; that they •were taken from a room in a house in which the said ■Owens resided with Ms mother and sister; that the property wras owned by one Divers, step-father of the said Owens, who bought it for the said Owens and placed llim in charge of it; that said Owens, was in •charge of said house, and carrying on a hotel business
“1. If the jury believe from the evidence that the-room from which the shoes were taken was used as a store where cigars, oranges, and peanuts, and other merchandise were kept for sale, the said room was not a dwelling-house, and the jury cannot convict the defendant of grand larceny.”
“2. If the jury believe from the evidence that John Divers, the step-father of the witness, Robert Owens, was the owner of the hotel known as the ‘English Kitchen,’ and that the same was a hotel, and that the-said Divers had the license to run said hotel, and the-wife of said Divers was residing in said hotel at the time,, then the variance as to the ownership of said house is fatal, and the jury cannot convict the defendant of grand larceny.”
We find no error in the refusal of the court to give these instructions. The house in which the shoes were stolen was the house in which Robert Owens dwelt with his mother and sister. IIe was the ostensible head of the family and in possession of the house as charged in the indictment. It was entirely immaterial to the defence who was the owner of the house, whether it, was run as a hotel, or to whom the license was issued for that purpose. The defendant was fully informed of theoffence with which he was charged by the averment in the indictment, that the shoes were stolen in “the-dwelling-house of Robert Owens, tken and there being.
The averment was sufficient and there was no variance between the averment and the proof. A man’s dwelling-house is that in which he (and his family, if he have any) eat, sleep, and make their home, and it is none the less his dwelling-house, because he may not be the owner of it; that in it he keeps rooms for lodgers and furnishes meals to others, and that the license for so doing is in the name of another, and in this case, although the room in Owens ’ dwelling-house, in which the shoes were stolen, was used by him as an office in connection with .the other uses of the house, and in it he kept for sale the articles mentioned in the instruction. It did not, by reason of these uses, cease to be a room in his dwelling-house, and a larceny committed in that .room was a larceny committed in his dwelling within .the meaning of the statute, just the same as if it had •been committed in the dining-room, kitchen, or any •other room in the house. R. S., 1879, sec. 1309 ; Bishop •on Stat. Crimes, secs. 242, 278, 280.
The judgment is affirmed.
