State v. Yandle, 166 Mo. 589

166 Mo. 589 | Mo. | 1902

GANTT, J.

The defendant was indicted at the Maxch term, 1900, of the circuit court of Webster county for burglary and larceny. On October 18, 1900, he was tried and convicted of both burglary and larceny from a dwelling house.

The defendant was duly arraigned and entered his plea of not guilty. The indictment was against defendant and James Yandle jointly. A severance was granted and they were tried separately.

Erom an offer of the conviction of James Yandle by defendant, it seems that James was also convicted of the same offense.

The evidence quite conclusively shows that on the second day of November, 1899, the dwelling!-house of H. C. Carpenter, situated in Webster county was broken open in his absence, and a suit of clothes of the value of ten dollars belonging to said Carpenter and in said house at the time, was stolen and carried away. The proof that the lock was broken and the house burglarized prior to one o’clock of November 2, 1899, was established by Carpenter and Keeler who testified to locking it when they left that morning to haul some wood for a neighbor and to finding the lock broken and the clothes stolen when they returned about one o’clock that afternoon.

The evidence further disclosed that on the same day of the burglary the defendant and James Yandle left for Kansas. About the first of December, 1900, they returned to Webster county and the town of Seymour City in said county, a station on the Kansas City, Fort Scott and Memphis railroad, and were arrested by W. H. Clay, the constable of that precinct, at a two-room cottage usually occupied by Mrs. Hostetter, but she was absent at the time. He found defendant David Yandle under the bed.

Some fifteen minutes after the arrest by the constable, the 'deputy sheriff, Newton Ward, arrived and found, in the room where these two were, a telescope trunk containing various articles of attire, among which was a blue coat and vest, which were fully identified by several witnesses besides Carpenter as his coat and vest which were stolen when his house was burglarized. Other witnesses testified that this defendant claimed the suit as his own.

The defense was an alibi and the defendant’s father, brother and sister testified to a state of facts which, if credited, would have rendered it impossible for defendant to have committed the burglary and larceny at the time at which it was fixed by the State’s witnesses. Defendant also testified that James Yandle bought the suit of clothes and a gun from a stranger for $2.25 on November 2, 1899, and that at James’s request he put on the suit and wore it to prevent James carrying them.

The indictment, omitting caption and formal attestation is as follows:

“The grand jurors for the State of Missouri, summoned from the county of Webster, impaneled, sworn and, charged to inquire within and for the body of the county of Webster, upon their oaths, present and charge that James Yandle and David Yandle, late of the county and State aforesaid, on or about the 2d day of November, 1899, at the county of Webster and State of Missouri, did then and there feloniously and burglariously break into and enter the dwelling house of one H. C. Carpenter, there situate, by then and there forcing and breaking the lock with which the outer door of said dwelling house was fastened, and by then and there forcibly opening the said outer door of said dwelling house, with intent certain goods and chattels then and there being the goods and chattels of the said H. C. Carpenter, then and there feloniously and burglariously to steal, take and carry away; and one coat, one vest and one pair of pants, all of the value of ten dollars, of the personal goods and chattels of the aforesaid H. C. Carpenter, then and there in said dwelling house being found, did then and there feloniously and burglariously steal, take and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.”

I. The indictment is sufficient. It charges every fact necessary to constitute the offense of burglary under section 1881, R. S. 1899. It was unnecessary to state the value of the goods stolen, since larceny committed in committing burglary is a felony irrespective of the value of the thing stolen. [State v. Henley, 30 Mo. l. c. 514; State v. Brinkley, 146 Mo. l. c. 41.]

II. It is conceded by counsel for defendant that the recent possession of the stolen property was prima facie evidence not only of the larceny but of the burglary as well, and such is the well-settled law of this State. [State v. Babb, 76 Mo. 501; State v. Dale, 141 Mo. 284.]

III. The point made on Mrs. Adams’s testimony in reference to an unsigned letter received by her after James Yandle and defendant left certain goods at her house can not avail, because, after hearing the preliminary proof by Mrs. Adams as to the loss of the letter and the directions she received from James Yandle, the court excluded her evidence and specifically directed the jury that they would disregard it in the consideration of defendant’s guilt or innocence.

IY. Error is assigned on the admission of certain evidence of witness Ben Adams, but the objection is such that it precludes a review in this court as the only ground assigned was that it was incompetent, irrelevant and immaterial, an objection which we have uniformly held insufficient if the evidence was admissible for any purpose, and in this case the witness had testified that a day or two after the commission of the burglary tbe defendant was at his house wearing a blue coat and. vest of the description of that stolen from Carpenter and left a gun and some clothing which he asked the witness to hide so no one would see them and he was only asked what became of this gun and clothing and he testified this defendant wore the blue suit off when he left there and never answered what became of the gun.

Neither was there any error in the testimony as to certain clothing in the telescope trunk or satchel because it was pertinent to prove that the defendant claimed it so as to connect him ■with the ownership of the telescope in which the stolen pants and vest were found and his possession thereof when arrested.

V. Again it is urged that the court improperly excluded the evidence that James Yandle was convicted of this same' burglary, and the evidence of Keeler as to the man whom John Cantrell and Bennett said they had seen pass about ten o’clock on .the morning of tire burglary, and offered to show it was James Yandle who was indicted with defendant.

It is clear that Cantrell’s and Bennett’s statement would have been pure hearsay and was properly rejected. It was no part of the res gestae and on its face disclosed that there was better evidence, that is to say, their own evidence of what they saw. And proof that James Yandle his co-indictee was also guilty of the burglary and larceny would not have exculpated defendant. This was the contention of the State throughout the trial.

In a word, evidence tending to prove that another person had an opportunity merely to commit the burglary constituted no defense. The evidence offered was a direct contradiction of that already offered by defendant. Evidence that one person had an opportunity' to commit the crime w-ould not exculpate defendant who also had the opportunity and committed the crime.

The instructions were full on all the points arising in the case and correctly stated the law.

No error being discovered the judgment is affirmed.

All concur.