State v. WrightState v. Wright
In this, as in the other cases, the son of appellant, Garland Wright, testified against his father. The crime in this case, as in the previous cases, was committed in Clay County, Missouri. Garland Wright testified that on the evening of March 11, 1934, appellant and Lemar Portwood and the witness drove from Kansas City into Clay County along Highway No. 169, for the express purpose of stealing property from some place where the owners were not at home; that as they passed the house of one Scott they noticed that thеre were no lights and apparently no one at home; that appellant and Portwood got out of the car and proceeded towards the house; that the witnеss drove down the highway, as per instructions from his father, and returned within about thirty minutes; that he found his father and Portwood in the front yard with some rugs, a radio and a couple of sacks of things which they loaded into the car; that about this time they saw a car coming down the highway so they left in a hurry, and as they drove toward Kansas City the two sacks, which had been placed on the fender, fell from the car.
Rosa Scott testified that she was the owner of the premises and that she and her son and daughter had left the home on the evening in question tо attend church; that when they returned they noticed a car leaving the premises and on discovering that the house had
A number of questions have been presented for our review. Appellant contends that the testimony of thе owner of the auction house was not proper rebuttal and should have been introduced by the State before the defendant put on his evidence. Such matters arе largely within the discretion of the trial court. We believe the evidence ought to have been introduced by the State before the defendant offered his evidence. It wаs evidence in chief and on a retrial this rule can be observed. We are not holding that the violation of this rule in this case was reversible error.
Appellant also urges thаt the evidence was insufficient to sustain a verdict of guilty. To this we cannot agree. While no one saw appellant breaking into the home of Rosa Scott, or taking prоperty therefrom, the facts and circumstances in the case, if believed by the jury, showed appellant to have been guilty beyond question. The evidence showed that аll the doors of the home were closed before its occupants went to church. Appellant and Portwood went to the home for the express purpose оf committing larceny therein. Appellant was found in possession of the property taken therefrom and he collected the money at the storage house wherе the property was sold; so that the contention that the evidence was insufficient is without merit.
The record discloses that the indictment returned in this case by the grand jury charged that appellant had burglarized the home of one R. Winfield Scott. The record further shows that upon the application of the prosecuting attorney the indictment was аmended by striking therefrom the name of R. Winfield Scott and inserting in lieu thereof the name Rosa Scott. The evidence does not show that R. Winfield Scott was the same person as Rosa Scott. We infer that they are not one and the same person. In fact the record shows that they were not. There was a witness by the name of J. Winfield Scott who was the son of Rosa Scott, but there was no evidence that R. Winfield Scott, as mentioned in the indictment, was the same person as J. Winfield Scott. Appellant has complained of this in his mоtion for new trial.
We are of the opinion that under the law the indictment could not be legally amended as it was in this case. In this case the only description in the indictment, as returned by the grand jury and as amended, of the home burglarized and of the property stolen was that it was the home and рroperty of a certain person named in the charge. The indictment charged that the home of R. Winfield Scott was burglarized and that the property of R. Winfield Scott was stоlen. The amended indictment charged that the home of Rosa Scott was burglarized and that her property was stolen. If a conviction had been obtained on the indictmеnt, as returned by the grand jury, it would not have been a bar to a prosecution as contained in the amended indictment. In an indictment for burglary it is necessary to allege the owner of the dwelling burglarized. The rule is stated in 9 Corpus Juris, page 1043, section 12, as follows:
“Except insofar as the rule may be changed by statute, an indictment for burglary, whether at common law or under a statute, must allege the ownership of the dwelling house or other building broken and entered, if it is known, or it will be fatally defective, and it must do so accurately, so that there will be no variance between the allegation and the proof. The fact that a statute defining burglary does not expressly require an allegation as to ownership dоes not do away with the necessity of such allegation.”
It will be noted that in the notes the cases of State v. James, 194 Mo. 268, 92 S. W. 679, and State v. Horned, 178 Mo. 59, 76 S. W. 953, are cited as authority.
For the error indicated the judgment is reversed and the cause remanded. Cooley and Bohling, CC., concur.
PER CURIAM:—The foregoing opinion by Westhues, C., is adopted as the opinion of the court. All the judges concur.