289 S.W. 822 | Mo. | 1926
The defendant was charged by information in the Circuit Court of Holt County with burglary and larceny, and upon a trial to a jury he was convicted as charged and his punishment assessed at two years' imprisonment in the penitentiary for each offense. From this judgment he appeals.
The facts disclose that the crimes with which the defendant was charged were committed by him while in company with two others, named Collins and Williams. The building burglarized was a smokehouse on the farm of one Fred St. John, located near the town of Fortescue in Holt County. Collins testified that in passing the St. John residence it was discovered that the owner and his family were away from home. That he and the defendant alighted from the car and he entered the St. John residence, from which he took a pistol. As he emerged from the house he saw the defendant pick up a gunny sack by the door of the smokehouse, open the door of same and enter it; that he saw meat, hams and shoulders, spread out on a table in the smokehouse, and that the defendant upon seeing it said, with an oath, "Right here is where I get myself some meat." Later the defendant came out of the smokehouse with the loaded gunny sack on his shoulder, and went southwesterly with it and returned a short time thereafter without it. Williams and Collins waited in the car until the defendant's return. They then went to Fortescue, *154 from which place they had gone earlier in the day. It appears that these parties had gone out into the country to obtain some whiskey, which, upon their return, they had been drinking and were under the influence of it when they reached the St. John residence. That evening the defendant told Collins that he had hid the meat out behind a straw-stack and was going back that night to get it. St. John testified that he and the members of his family at or about nine or ten o'clock on the day the crimes were alleged to have been committed, went to Fortescue, two miles distant, and returned at about two-thirty, P.M. that day. Upon their return he found that four joints of meat, three hams and a shoulder, had been taken from his smokehouse; that this house was about twenty feet from his residence, was closed and could only be entered by lifting a latch and opening the door of same; that a short time before he and his family left home the defendant and Williams and Collins passed in a car going in a northerly direction. Several witnesses testified that on the day of the alleged crime they saw the defendant and his two companions in a car on the road which ran by St. John's residence. Williams, testifying for the defendant, stated that at no time did he and the defendant and Collins stop at St. John's residence. There was no other testimony for the defense, other than to prove that Collin's reputation for truth and veracity was, as stated by one witness, bad, and by another, that it was good when he was sober and bad when he was drunk.
The errors alleged by the defendant to have been committed during the progress of the trial, as preserved in the motion for a new trial, are the admission of incompetent evidence; that the verdict was not in conformity with the law and the instructions of the court, and was the result of passion and prejudice.
The motion in arrest of judgment alleged that the information did not charge any offense under the law in that it was drawn under a repealed statute; that the verdict of the jury was insufficient in that it did not name the defendant therein.
I. The information in a single count charges burglary in the second degree and grand larceny; the first under Section 3297, Revised Statutes 1919, as amended, Laws 1921, page 196, and the second under Section 3312, Revised Statutes 1919.Information. The joinder of these offenses in one count is authorized under Section 3305, Revised Statutes 1919. Both under the common law and the statute the information alleges a breaking as well as an entry of the premises named, which is sufficient to charge burglary under our law. In one of the charges of burglary in our reports (State v. Tipton,
II. An examination of the bill of exceptions discloses no error on the part of the trial court, either in the admission of improper or the exclusion of competent testimony.Irrelevant While testimony may have been admitted which wasEvidence. irrelevant, not infrequently the case in ordinary trials, the most discriminating review does not justify the conclusion that it was in any instance prejudicial. This is and should be the test in determining a contention in this regard.
III. We find upon an examination of the instructions that those given correctly cover every phase of the case and are in the forms often approved by this court. Those asked by the defendant and refused were but repetitions of others of likeInstructions. purport given at the request of the State and their refusal was therefore not error. This examination was not required, as under our procedure no objections to the giving or refusal of instructions were preserved in a manner to require their review upon appeal.
The provisions of the motion for a new trial in this regard are as follows:
"3. That the court refused to give instructions offered and on behalf of the defendant.
"4. That the court allowed instructions to be given to the jury improperly on the part of the State."
A general assignment of errors in motions for new trials in criminal cases does not constitute such a preservation of same as is required by the statute, Section 4079, Revised Statutes 1919, as amended, Laws 1925, p. 198, which is as follows:
"The motion for a new trial shall be in writing and must set forth in detail and with particularity in separate numbered paragraphs, the specific grounds or causes therefor. Such motion shall be filed before judgment and within four days after the return of the verdict, if the term shall so long continue; and if not, then before the *156 end of the term; provided, that the court shall have power in any case for good cause shown to extend the time for filing such motion for a period not exceeding ten days from the date of the return of the verdict."
IV. Despite the fact that motions in arrest of judgment have been abolished in our criminal procedure (Sec. 4080, Laws 1925), we have considered the grounds urged in such a motionMotion in in this case, as though the same had been made in theArrest. motion for a new trial. It is urged in the motion in arrest that the information did not charge any offense under the law. The sufficiency of this pleading has been discussed and ruled against the contention of the defendant.
It is further urged that the verdict is insufficient in that it does not name the defendant therein. The verdict was in this form:
"We, the jury, find the defendant guilty of burglary in the second degree as charged in the information and assess his punishment at two years in the State Penitentiary. And we further find defendant guilty of Larceny and assess his punishment at two years in the State Penitentiary."
It is pertinent to inquire in this connection what is meant by a verdict and the purpose it serves in a prosecution for crime. It may be defined as being, when properly drawn, a definite answer given by the jury to the court concerning the matter of fact submitted to them for their consideration and determination. To meet these requisites is should, in general terms, respond to the charge made in the indictment or information. Possessed of these requisites it will be sufficient, when a judgment is properly rendered thereon, to bar another prosecution for the same offense. [State v. Blue,
In the absence of prejudicial error this judgment is affirmed. It is so ordered. All concur. *157
