State v. Schuchmann

Citation33 S.W. 35,133 Mo. 111
PartiesSTATE v. SCHUCHMANN.
Decision Date03 December 1895
CourtUnited States State Supreme Court of Missouri

3. "Other building," as used in Rev. St. 1889, § 3526, making it burglary for any person to break and enter any "shop, store, booth, tent, warehouse or other building," etc., means a building of like kind with those enumerated, and does not, therefore, embrace a "chicken house building." State v. Hecox, 83 Mo. 532, overruled. Gantt, P. J., dissenting.

4. Fatal defects in an indictment may be considered, though raised for the first time on appeal.

5. Under Rev. St. 1889, § 3944, providing that every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory before the fact, shall, on conviction, be adjudged guilty of the offense in the same degree as a principal in the first degree, the indictment may either allege the matter according to the fact, or charge both the principal and the accessory as principals in the first degree.

6. Since an affidavit for change of venue can only be preserved in a bill of exceptions, the sufficiency of such affidavit cannot be considered on appeal, in the absence of such bill.

Appeal from circuit court, Franklin county; Rudolph Hirzel, Judge.

Edward Schuchmann was convicted of the crime of burglary in the second degree, and appeals. Reversed.

Zach. J. Mitchell, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, for the State.

SHERWOOD, J.

On change of venue from St. Louis county circuit court, the defendant was tried in the Franklin circuit court upon an indictment the material portions of which are as follows: "That Joseph Turner and Ruben Troller, on the second day of July, A. D. one thousand eight hundred and ninety-three, at the county of St. Louis, in the state of Missouri, did then and there feloniously and burglariously break into and enter a certain chicken house building, the property, then, of William C. Price, by forcibly pushing and bursting open an outer window of the same, and with the intent thereby then and there feloniously and burglariously to take, steal, and carry away certain property, consisting of divers live chickens and valuble things, which were then and there being kept and deposited in said building, and then and there did unlawfully and burglariously take, steal, and carry away, from and out of said building, of the said valuable things, the property, then, of the said William C. Price, divers live chickens, in number and of value to these jurors unknown. And the jurors aforesaid, upon their oath aforesaid, do further present and charge that, before the said felonious burglary and larceny was committed, as aforesaid, one Edward Schuchmann did, in the said county, and on the said day, unlawfully, feloniously, and burglariously advise, incite, procure, and aid the said persons, Joseph Turner and Ruben Troller, to commit the said crimes and felony, — against the peace and dignity of the state. R. Lee Mudd, Pros. Atty. of St. Louis Co., Mo." The trial resulted in the conviction of the defendant, his punishment being assessed at imprisonment in the penitentiary for the term of three years.

1. On the 16th of March the time granted defendant in which to file his bill of exceptions having expired, the trial judge was powerless, on the 19th of March, to extend, by his order, the time for filing the bill of exceptions, as we have over and over again decided.

2. The section of the statute upon which the foregoing indictment is framed is as follows: "Every person who shall be convicted of breaking and entering: First, any building within the curtilage of a dwelling house, but not forming a part thereof; or, second, any shop, store, booth, tent, warehouse or other building or any boat or vessel, or any railroad car in which there shall be at the time some human being, or any goods, wares, merchandise or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall, on conviction be adjudged guilty of burglary in the second degree." Rev. St. 1889, § 3526. Under this section, the indictment, if based on the first clause thereof, must charge that the building in which the burglary was committed was "within the curtilage of the dwelling house." Without such averment the indictment would be fatally defective, because of not containing the descriptive words the statute contains. If the indictment be based on the second clause of the section, then it is bad, because the rule as to matters ejusdem generis applies, — that good rule of construction which requires that, "when a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with that class." Broom, Leg. Max. (6th Ed.) 625. Here the term "chicken house building" is not of the same kind or class as those previously mentioned, and, therefore, cannot fall within the definition of the term "other building." State v. Bryant, 90 Mo. 534, 2 S. W. 836, and cases cited. See, also, State v. Seibert (Mo. Sup.) 27 S. W., loc. cit. 626. The indictment is, therefore, bad, under either clause of the section. This view of the matter is not in accord with State v. Hecox, 83 Mo. 532, where a burglary in a "granary" was committed, and there was no allegation that it was within the curtilage; but, for reasons already given, we do not regard that case as sound law, and consequently will not follow it. Moreover, the statute is both penal and criminal, and, therefore, to be strictly construed; construed strictly as to those portions which are against defendants, but liberally construed in those which are in their favor, — that is, for their case and exemption. No person is to be made subject to such statutes by implication, and when doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused. Bish. St. Crimes (2d Ed.) §§ 193, 194, 227. The defects mentioned in the indictment, being fatal in their character, may be raised and considered for the first time in this court, and of our own motion. State v. Meyers, 99 Mo., loc. cit. 112, 12 S. W. 516, and cases cited.

When writing the above, I had supposed the doctrine so well settled, in regard to the proper construction to be given to the meaning of general words which follow those which designate or create a particular class or classes of persons or things, that I thought it needless to do but little more than barely to refer to some of the authorities which announced the time-worn maxim, "ejusdem generis." But it seems, from recent suggestions, that I erred in so thinking, and so I will refer to some "wise saws and modern instances," illustrating the hackneyed position heretofore taken. Thus, in Rex v. Inhabitants of Whitnash, 7 Barn. & C. 596, St. 29 Car. II. c 7, § 1, provided "that no tradesman, artificer, workman, laborer, or other person whatsoever" should exercise his ordinary calling on the Lord's day. And thereupon it was ruled that the words "other person" did not include a farmer, because not of like denomination with those specifically mentioned; Bailey, J., remarking that, if all persons were meant, there was no need of the specific enumeration. So, in Ex parte Hill, 3 Car. & P. 225, under the common-law rule that, where general words follow particular and specific words, the former must be confined to things of the same kind, it was ruled that a "bull" was not included under the words "other cattle," as used in a statute which made it indictable for any person to "wantonly or cruelly beat, abuse and ill-treat any horse, mare, gelding, mule, ass, ox, cow, heifer, steer, sheep or other cattle,"the court saying: "Horse, mare, gelding, are one class; ox, cow, heifer and steer are another; and * * * the bull is not included in this act." Sandiman v. Breach, 7 Barn. & C. 96, was an action of assumpsit, brought to recover the expense of hiring a postchaise, the defendant having failed to convey plaintiff in his stagecoach, as he had contracted to do. For the defense it was contended that the contract was illegal, because it was to be performed on the Sabbath. Lord Tenterden did not approve this contention, and, in delivering the unanimous opinion of the court of queen's bench, said: "It was objected that the plaintiff in this case could not recover, because the contract, for the breach of which the action was brought, was to have been performed on the Sabbath day, and that it could not legally be performed on that day. But, upon looking into the statutes (3 Car. I. c. 1, and 29 Car. II. c. 7) upon which the objection was founded, we are of the opinion that this case does not come within them. * * * By the first of these, 3 Car. I. c. 1, it was enacted that `no carrier, with any horse, nor wagonman, with any wagon, nor cartman, with any cart, nor wainman, with any wain, nor drover, with any cattle, shall, by themselves or any other, travel on the Lord's day'; and by 29 Car. II. c. 7, that `no tradesman, artificer, workman, laborer, or other person or persons, shall do or exercise any worldly labor, business or work of their ordinary callings, upon the Lord's day.' It was contended that, under the words `other person or persons,' the drivers of stagecoaches are included. But, where general words follow particular ones, the rule is to construe them as applicable to persons ejusdem...

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