HIGBEE, C.
On November 24, 1924, the prosecuting attorney of Platte county filed an information in the circuit court of that county purporting to be based on the affidavit of E. M. Mathews, charging, in substance, that Robert Reed, on September 24, 1924, at Platte county, feloniously and burglariously broke into and entered a certain box car, the property of the Burlington Railway Company, a corporation, and being a car in which divers goods, merchandise, and other valuable things were then and there kept and deposited, with intent the goods, merchandise, and valuable things in said car feloniously and burglariously to steal, and did then and there feloniously and burglariously steal, take, and carry away one box of dry goods and one box of hardware and other personal goods of the value of over $30 so found in said car.'
On November 25, 1924, an amended information was filed, the amendment being that the box car mentioned in the information was the property of the Chicago, Burlington & Quincy Railway Company, a corporation organized under the laws of the state of Illinois and permitted to do business in the state of Missouri.
The case went to trial on March 10, 1925, at the conclusion of which the jury found the defendant guilty of burglary as charged in the information, assessed his punishment at imprisonment in the penitentiary for a term of two years, and acquitted him on the charge of larceny. Motions for new trial and in arrest having been filed and overruled, defendant was sentenced in accordance with the verdict and appealed.
Clarence Wilson, employed by the railway company, testified:
"I left St. Joseph, where I lived, at about 6:30 p. m. on September 23, 1924, on a freight train and arrived at East Leavenworth about 1 or 1:30 a. m. of the following day. A box car belonging to the Chicago, Burlington & Quincy Railway Company (usually called `the Burlington' by counsel and witnesses) loaded with merchandise, had been set out on a siding at East Leavenworth. I found one door of this car was open and a lot of boxes piled out on the ground. I saw an automobile in the wagon road and could hear boxes being torn open in the direction of the automobile, and saw a flashlight coming through an adjoining cornfield. I figured they were loading the stuff into this automobile and waited until they got it loaded. Then they all got around the automobile. I hid in the weeds, about 20 steps distant from them. I called for them to throw up their hands; they started shooting from the automobile; fired 4 or 5 shots. I returned the fire. firing several shots, and saw one fellow fall but he got up and ran up the road. I ran to the automobile, and while standing at its front end I seen this fellow on his knees on the bottom of the car; he drew a sawed-off shotgun on me. I ducked to the ground beside the auto and the shot passed over me, and before the fellow could reload the gun, I shot him through the head, killing him instantly. I took the shotgun and went to notify the sheriff. When the sheriff came, we went back up the road, but the auto was gone. It was a Buick touring car. We went to the box car and found it had been pilfered. While at the car, we heard some one in the cornfield calling for help. We went over to him; he was Joe Scotch. He was shot in the shoulder. We took him to Platte City, where
he died about 6 a. m. I was unable at the time of the shooting to identify any of the parties except only one fellow's voice — this Julius Scotch. It was a peculiar voice. He said, `This won't go in there.' This was Julius Scotch. I didn't know any of them at the time. Heard this voice at the police station in St. Joseph when he was arrested the next day. He was supposed to be a brother of the two dead Scotchs. This was in Platte county, Mo. It was dark when I arrived at East Leavenworth; there were no lights on the automobile. The box car was about two blocks from the highway where the automobile was parked. I saw no man about the box car. The first time I saw the defendant to recognize him was in jail at St. Joe. (Witness here identified the shotgun.) I turned it over to the prosecuting attorney. When I took it from the dead man, there was an empty shell in the barrel and there were shells in the magazine; I smelled the powder of the exploded shell."
The evidence shows that this box car which was broken into was the property of the Chicago, Burlington & Quincy Railway Company, an incorporation organized under the laws of the state of Illinois; that it was marked "C., B. & Q" and numbered 120048; that it was loaded at Kansas City, Mo., on September 23, 1924, with merchandise packed in boxes and cartons consigned to persons in Leavenworth, Kan.; that the car doors were sealed, and the car was set out on a switch or siding at East Leavenworth on the night of September 23, 1924, to be transferred across the river to Leavenworth, Kan. The car arrived at Leavenworth on the morning of September 24; one door was partly open. The contents were checked. Among other things it contained a shipment of Kraft cheese in tin cans for Bittman-Todd. They were in cartons. There should have been 20 cases; there were only 5 of these in the car, and one of them was torn open and the contents scattered over the floor of the car. There was a shipment of airplane tools and supplies for the fort, which was considerably short, consisting of bits, augers, hammers, pliers, screw drivers, chisels, files, blow torches, monkey wrenches, aviators' gloves, solder, etc.
Elbert Fleming, living 7 miles northeast of Platte City, identified certain articles he found on the morning of September 24, 1924, in his wheat field close to the road, near Mellon's bridge, as if they had been thrown over the fence. Seeing the name of Bittman-Todd on the cases of cheese, he telephoned that company and then called the sheriff, Tom Hulett, who came and took charge of the articles referred to by the witness Fleming. There was blood on the cheese and several other articles. They were all identified and offered in evidence.
The defendant, Reed, and Julius Scotch and his two brothers were seen in Reed's Buick car on the afternoon of September 23, 1924, in St. Joseph, "headed south" in the direction of the Scotch home. Frank and "Honey" Scotch were in the car; Reed was driving. Joe Scotch was not in the car. They had been seen together quite frequently; they associated together.
George Adkins testified:
"I live about 20 miles north of here (Platte City) in Buchanan county, right on the road. Between 6 and 7 a. m. on September 24, 1924, while Mr. Proffitt and I were driving along the highway we met a man dressed in a leather coat, bareheaded, and a dark-complected fellow. He was going west. He put his hand over his face like that (indicating). I learned afterward about a Buick car being abandoned below my place. I seen it the same day. I cannot say this defendant is the man I saw in the road. That was about 6 miles above Dearborn where I live."
J. C. Byrd testified:
"I live 2 miles southeast of Faucett, between Faucett and Dearborn, in Buchanan county. I met the defendant Reed about 7 o'clock on the morning of September 24, 1924, in the road; he was walking north in front of Duncan Ray's house. He was carrying a leather coat on his left arm. I was driving a tractor and threshing machine to Mr. Adkin's to do some threshing. It was on the Manville road, a pretty well traveled road. He was walking pretty fast and sweating freely. We was threshing there in the field to the side of where the car was abandoned, and they told me at the noon hour this is what happened. He had on a little cap when I met him."
Walter L. Mack testified:
"I live 4 miles south of Faucett; am a farmer and in the real estate business in St. Joseph. I was driving to St. Joseph on the morning of September 24, 1924, and overtook the defendant about 7:30 or 8 o'clock. He was walking. I invited him to ride with me. He said he ran out of gasoline and he was going to St. Joe to get a friend of his to bring out another car. He carried a leather coat on his left arm and was bareheaded; said he had a bad case of dandruff and didn't wear a hat in the early part of the day. He said he was in the country looking for apples. I turned to go to a filling station in South St. Joe, and he stepped out and thanked me. I saw no blood on the coat. I picked him up about 5 miles from Dearborn. It is 16 miles from my house to St. Joe, and I was about 2 miles From my house when I picked him up."
J. S. Myers testified:
"I live in St. Joe; run an automobile business. I sold the defendant a Buick car, March 13, 1923, and took a mortgage hack. I saw this car after it was hauled in after the 24th. It was in the Inter-State Garage and afterwards in our own. We replevined the car. I found blood in the car; the windshield was broken."
Tracy Berry, an embalmer with Fleeman and Miller, testified:
"I was called to go to South St. Joe on the morning of September 24, 1924, to get a
car and a dead man; found the remains of Frank Scotch in the back part of the car with a cushion over it. I knew the Scotch boys. It was a Buick car. We towed the car to St. Joe. Found what looked like blood on the floor of the car. There was a hole in the windshield and a hole on the left side, right back of the front door. You could put your finger through it; it was a ragged hole. Blood had dripped through the floor boards to the ground. We ddin't try to start it; the brakes were in bad shape, and there was one light out."
On cross-examination:
"There had been a call before that from ...
