State v. Riley
| Citation | 13 S.W. 1063,100 Mo. 493 |
| Parties | The State v. Riley, Appellant |
| Decision Date | 02 June 1890 |
| Court | United States State Supreme Court of Missouri |
Appeal from Buchanan Criminal Court. -- Hon. Silas Woodson, Judge.
Affirmed.
Woodson & Woodson for appellant.
(1) The court should have sustained the motion to quash the indictment. It was necessary to allege the Christian name and surname of W. E. Brocken or give some reason for not so doing. Willis v. People, 1 Scammon (Ill.) 399; Moore's Crim. Law, sec. 160, pp. 217, 881; Jones v State, 11 Ind. 357; Kelley's Crim. Law, secs. 174 176, 180, 600; State v. Fay, 65 Mo. 490; State v. Horn, 93 Mo. 190; State v. Smith, 31 Mo 120. (2) There was a variance between the allegations of the indictment and the evidence. The indictment charged the larceny to have been committed in the dwelling house of Gibson, and the uncontradicted evidence was that it belonged to Gibson and Brocken. (3) Defendant might have been convicted of petit larceny only and his third instruction should have been given. State v. Clifton, 73 Mo. 428; R. S. 1879 sec. 1655. (4) Defendant's instruction number 1, upon the question of insanity, should have been given. There was sufficient evidence upon which to base it. State v. Hundley, 46 Mo. 414, and cases cited. And the defense of insanity in a criminal case is a question of fact for the jury. State v. Holmes, 54 Mo. 153; State v. Hundley, 46 Mo. 414; State v. Redemeir, 71 Mo. 173.
John M. Wood, Attorney General, for the State.
(1) The indictment clearly charges larceny from a dwelling house. It is not bad because of the use of the initials instead of the Christian name of one of the owners of the property. The failure to state such owner's Christian name is not such an error as to prejudice the substantial rights of defendant upon the merits. R. S. 1889, secs. 4114 and 4115; State v. Baker, 64 Mo. 282; State v. Bibb, 68 Mo. 286; State v. Mohr, 68 Mo. 303; State v. Johnson, 93 Mo. 73; State v. Johnson, 93 Mo. 317. The indictment would have been good if the name of W. E. Brocken had been omitted. R. S. 1889, sec. 4106. (2) It will be presumed that the trial court, in refusing defendant's demurrer to the evidence, found that the variance claimed was immaterial or not prejudicial to the defense; such being the case, this court will not review the action of the trial judge. R. S. 1889, sec. 4114; State v. Meyers, 82 Mo. 558, and authorities cited; State v. Sharp, 71 Mo. 218. (3) Instruction number 3 in appellant's abstract (which is number 5 in the record) was properly refused, for the reason that there was not a particle of evidence on which to base it. The evidence showed that the gun was stolen by defendant from a dwelling house, and this is grand larceny, irrespective of the value of the property so stolen. There is nothing in the case in the slightest degree indicating that defendant might have stolen the gun from some other place than from the dwelling house. (4) The evidence on the part of the defendant utterly fails to show any insanity in defendant, and especially so at the time the offense was committed. All it establishes is that defendant was an habitual drunkard, and, inasmuch as drunkenness does not excuse crime, the court did not err in refusing defendant's instruction as to his responsibility for the act on account of drunkenness. State v. Edwards, 71 Mo. 312, and authorities cited; State v. Ramsey, 82 Mo. 133, and authorities cited.
-- Defendant was indicted, tried and convicted in the Buchanan county criminal court of the larceny of a shot-gun, from a dwelling house, and his punishment assessed at imprisonment in the penitentiary for three years.
Omitting caption and signature of the prosecuting attorney the indictment in the cause is as follows:
"The grand jurors of the state of Missouri, within and for the body of the county of Buchanan aforesaid, being duly empanelled and sworn, upon their oaths do present that James Riley, on the fifteenth day of May, A. D. 1889, or within a few days next before said fifteenth day of May, at the county of Buchanan and state aforesaid, from the dwelling house of George W. Gibson, one double-barrel shot-gun (a better description is to the grand jurors unknown) of the value of thirty dollars, the joint personal property of George W. Gibson and W. E. Brocken, then and there being found to-wit, in said dwelling house and at said county did feloniously steal, take and carry away, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state."
The evidence in behalf of the state is to the effect that Gibson, who was a man of family, and Brocken, who was single and unmarried, lived together upon a farm in Buchanan county, Missouri, and were partners in managing and working the farm. Having closed up their house, said Gibson, with his wife and child, and said Brocken and a hired hand, left early in the morning of May 11, and went to St. Joseph, Missouri, for the day.
The children of Gibson were sent over to their uncle's, in the neighborhood, so that no one was left at the house on said day. The doors of the house were shut, but not locked. At a point called Frazier, on their way to St. Joe, and two or three miles from their farm, they met defendant, who asked Brocken if they were going to town, and was told that they were. Upon their return, at about eight o'clock that same evening, they found that a shot-gun, which had been left in a gun-rack over a door in the interior of the house, was missing. Between two and three o'clock in the afternoon of the same day one Henry Cook and two others met defendant on the road some three or four miles from the place of the larceny, carrying the gun in question, which defendant represented he had taken in part payment for labor, from a man at or near Plattsburg, Missouri, and, after some parley and negotiation, the defendant sold the gun to said Cook for six dollars. The value of the gun was, it may be remarked, variously estimated at from twenty to thirty dollars. This evidence was not disputed or controverted.
It is practically conceded that defendant took the gun, and the only evidence in defendant's behalf was offered to show that he was not responsible for the crime, because of his mental condition due to continued and excessive intemperance. We will recur to this branch of the evidence later on in the course of this opinion.
The summary of the evidence already given will, we think, suffice for a correct apprehension of its general character and bearings, and we will now proceed to a consideration of the points now urged for a reversal of the judgment of conviction. First, then, there was a motion to quash the indictment because the indictment did not set out the Christian name of W. E. Brocken, who was one of the owners of the stolen gun. This motion was, we think, properly overruled by the court. R. S. 1879, secs. 1812 and 1820.
Again it is contended that there is a fatal variance between the indictment and proof, inasmuch as the indictment charged the larceny to have been committed in the dwelling house of Gibson, whereas the evidence shows the house was held in partnership by Gibson and Brocken. This state of facts is expressly provided for in section 1812, Revised Statutes 1879, which provides that where any offense shall be committed upon or in relation to any property, belonging to several partners or owners, the...
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