290 S.W. 145 (Mo. 1926), 27043, State v. Reed

Docket Nº:27043
Citation:290 S.W. 145
Opinion Judge:HIGBEE, C. Per Curiam.
Party Name:STATE v. REED
Attorney:Earl C. Borchers, of St. Joseph, for appellant. North T. Gentry, Atty. Gen., and Claude Curtis, Sp. Asst. Atty. Gen., for the State.
Judge Panel:RAILEY, C., concurs.
Case Date:December 20, 1926
Court:Supreme Court of Missouri
 
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Page 145

290 S.W. 145 (Mo. 1926)

STATE

v.

REED

No. 27043

Supreme Court of Missouri, Second Division

December 20, 1926

Earl C. Borchers, of St. Joseph, for appellant.

North T. Gentry, Atty. Gen., and Claude Curtis, Sp. Asst. Atty. Gen., for the State.

OPINION

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

Page 146

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...

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