State v. Warford

• Decision Date: 23 June 1891
• Parties: STATE v. WARFORD.
• Court: Missouri Supreme Court

16 S.W. 886

106 Mo. 55

STATE v. WARFORD.

Supreme Court of Missouri, Division No. 2.

June 23, 1891.

BURGLARY — EVIDENCE — INSTRUCTIONS — MISCONDUCT OF COUNSEL.

1. On a trial for burglary the evidence showed that the stolen property, a saddle, was put in a barn on Sunday, and was missed the next Wednesday; that during that time horses were kept in the barn; that they could have escaped had the doors been opened; and that the doors were kept closed and latched in order to keep the horses in. Held, that there was sufficient evidence to justify the jury in concluding that the saddle had been stolen by means of "breaking and entering" the barn, though no witness swore positively that the doors were closed and latched all the time from Sunday to Wednesday.

2. Defendant's exclusive possession of property which has been recently stolen by burglars is presumptive evidence of his being guilty of both burglary and larceny, but his possession jointly with another person is no proof of his guilt.

3. An instruction that, if the stolen property "was found in the possession of the defendant, or in the possession of defendant and another person, then the law presumes that the defendant is guilty of both burglary and larceny," is not cured by also instructing the jury that, "although the [stolen] saddle was in the wagon in which W. traveled, yet if defendant had nothing more to do with said saddle than to ride the same while in Kansas, and that said W., without further control or dominion over said saddle by defendant, sold the same, and that W. and defendant were not acting in concert, then said saddle was not in the possession of the defendant, within the meaning of the state's instruction."

4. Possession of stolen property, five or six weeks after the crime was committed, is not presumptive evidence of guilt.

5. In a trial for burglary and larceny, it is error to allow the prosecuting attorney to state to the jury that a conviction for petit larceny would cause the county and the tax-payers large expense.

Appeal from circuit court, Daviess county; CHARLES H. S. GOODMAN, Judge.

Hicklin & Yates, for appellant. John M. Wood, Atty. Gen., and J. A. Selby, Pros. Atty., for the State.

MACFARLANE, J.

Defendant and one John Webb were jointly indicted by a grand jury of Daviess county of burglary and the larceny of a saddle belonging to one Lewis Best. There was a dismissal as to Webb, and defendant was tried and convicted. From the judgment he appeals.

1. Defendant complains that the evidence of burglary was not sufficient to justify his conviction of that crime. The saddle which was the subject of the larceny was kept in the barn was of Lewis Best, the owner. The barn was about 32 by 48 feet in dimensions, and had a drive-way through it from east to west, with stables on each side at the west end. The driveway was inclosed by large double doors at each end, one above the other. The saddle was kept hanging on a nail in the partition on the south side of the stable. The doors were fastened by latches. The saddle was hung in its usual place on Sunday, and was not missed until the succeeding Wednesday. Between those dates it was taken. Best and two employes, Powell and Cunningham, had charge of the barn during this time. Neither of the first two could testify positively that the doors were kept closed and fastened during the whole of this interval. They could not be positive. They supposed they were. They were generally shut. Cunningham, who had charge of Best's horses, was more positive. He testified that at the time three mares were kept in the stable, — one with a young colt, the other two to have colts. He testified the doors were kept fastened to keep the mares inside, the weather, as he remembered, being stormy, and, if the door had been left open, the mares would have escaped from the stable. He could not remember positively of fastening the doors on these particular days, nor of seeing that they were kept fastened. The substantive facts to be proved in this case, in order to support the conviction for the crime of burglary were that of "breaking and entering" the stable in which the saddle was at the time stored, with the intent to steal therefrom. While proof of breaking was necessary, the use of very slight force, if proved, will sustain the conviction. Displacing the fastenings provided for the security of the barn and stable, and their contents, would constitute a sufficient breaking, under the statute. This proposition is not controverted by defendant, but he contends that the evidence did not show affirmatively and definitely that the doors were closed when defendant might have entered, and consequently there was no sufficient evidence of breaking. It is seldom that a burglary can be proved by the direct and positive evidence of witnesses who have knowledge of the fact. The inference of guilt, in most instances, have, necessarily, to be drawn from other facts satisfactorily proved. The sufficiency of the evidence in any case belongs exclusively to the jury. The competency of the evidence is to be determined by the court. "By `sufficiency of evidence' is intended that amount of proof which ordinarily satisfies an unprejudiced mind beyond reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined. The only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of a common man, and so convince him that he would venture to act upon that conviction in matter of the highest concern and importance to his own interest." 1 Greenl. Ev.p. 4, § 2. The question is whether, from facts satisfactorily proved, a legitimate inference can be drawn that the doors were fastened when the thief entered the stable and took the saddle therefrom. It would have been impossible for any one of the three witnesses, who were engaged in the ordinary work and business of the farm, to have testified positively that at no time during the interval from Sunday to Wednesday the doors had not been left open for some period. To require such direct and positive proof would be almost equivalent to saying that a burglary could not be proved when committed in a barn, stable, or other outhouse on a farm, as to keep a constant watch over them would be wholly impracticable. The evidence in this case shows that, at the time of the larceny, the barn was intentionally kept fastened for a particular purpose. So far as the...