State v. Moten

276 Mo. 354 | Mo. | 1918

FARIS, J.

Defendant, jointly charged with one Joe Short, by information, with the crime of burglary and larceny, took a severance, and upon his trial was found guilty of burglary alone, and his punishment assessed by the jury at imprisonment in the penitentiary for a term of two years. After the conventional procedure he has appealed.

The facts of the case while few and simple, are in no way necessary to an understanding of the legal points involved. But for reasons which will become apparent the information upon which the conviction was had is important. This information, omitting caption and other conventional parts in no wise attacked, reads thus:

“ S. C. Gill, Prosecuting Attorney within and for Moniteau County, Missouri, upon his oath of office and upon his information and belief, informs the court that Joe Short and Dick Moten, on or about the sixth day of August, 1917, at the county of Moniteau and State of Missouri, into a certain store, shop and building of Herman Affolter there situate and being, feloniously and burglariously, forcibly did break and enter, with intent then and there, and thereby feloniously and burglariously, to steal, take and carry away certain goods, wares, merchandise, and other valuable things and personal property in the said store, shop and building,• twenty bottles of soda water of the value of one dollar, and two dollars, all of the value of three dollars, of the goods, wares, merchandise, other valuable’ things and personal property of the said Herman Affolter in the said store, shop and building then and there being found, then and there feloniously and burglariously did steal and take and carry away, with the intent then and there to deprive the owner Herman Affolter of the use thereof and to convert the same to his own use; against the peace and dignity of the State.”

After defendant’s conviction he filed a motion in arrest, attacking the sufficiency of the above information. He contents himself with this sole point, and so shall we.

This prosecution is bottomed upon Section 4520, Revised Statutes 1909, which defines one of the ways in which, pursuant to statute, burglary in the second degree may be committed. So much of the above section as is pertinent to the question of the goodness vel non of the information herein reads thus:

“Every person who shall be convicted of breaking and entering any building, the breaking and entering of whicli shall not be declared by any statute of this State to be burglary in the first degree, ... in which there shall be at the time any . . . goo*ds, wares, merchandise, or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree.” [Sec. 4520, R. S. 1909.]

Obviously the offense denounced and defined above would not have been burglary at common law. It is therefore a statutory crime and the rule is that an information or an indictment for such a crime must substantially follow the words of the statute defining it. The information in this case does not charge that fhe factory, shop or building alleged to have been burglarized was one wherein goods, wares, and merchandise and other valuable thing were at the time or then and there “Icept and deposited.” Unless at the time of the alleged hnrglary there was either a human being in the building or goods, etc., therein kept and deposited, the building was not such a one as coaid be burglarized. There is neither proof, allegation, nor contention that there was at the time of tne alleged burglary any human being in this building; so unless there were at the time goods, etc., kept and deposited therein it was not the subject of burglary and it was not possible to commit a burglary by breaking and entering, it.

The learned pleader evidently intended to charge both burglary and larceny in a single count of the same information, as is permissible. But while this is permissible the two charges must be kept separate and not jumbled together and intermingled and each must be a complete and sufficient charge within itself, barring mere formal allegations. [State v. Dooley, 64 Mo. 146.] In order to charge burglary under Section 4520, for the burglarious entry of a building in which goods, etc., are at the time kept and deposited, apt allegation must be made of the fact that goods, etc., are kept and deposited therein, together with the further averment that the breaking and entry was with the intent to steal the goods, etc., in the said building then and there being. [See State v. Moss, 216 Mo. l. c. 438; Kelley’s Crim. Law & Proc., sec. 609.]

Our attention is called to the case of State v. Burns, 263 Mo. 593, wherein the defendant though informed against for both burglary and larceny had been convicted of the larceny only, so that in a manner of speaking the charge of burglary there became merely a collateral issue. The solé ' complaint made in that case touching the information was that the charge of larceny was insufficient. In disallowing this contention language is used obiter with reference to the sufficiency of the part of the information which charges the burglary which is possibly too broad. But whéther this be so or not the Burns case furnished no authority for the omission here of the averment that in the building alleged to have been burglarized goods, etc., were at the time kept and deposited. In fact this allegation was contained in the information in the Burns case. "We are of the opinion that the information herein is fatally defective.

For the error in overruling the motion in arrest which challenged the sufficiency of the information herein, the judgment must be reversed and the case remanded for a new trial, in the event that the learned prosecuting attorney should be advised to file an amended information. Let it be so ordered.

All concur.