Conner v. State

• Decision Date: 31 March 1851
• Citation: 14 Mo. 561
• Parties: DANIEL CONNER v. STATE OF MISSOURI.
• Court: Missouri Supreme Court

14 Mo. 561

DANIEL CONNER

v.STATE OF MISSOURI.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

The defendant, on the 19th of January, 1850, was indicted for burglary in the second degree by breaking into the dwelling house of Henry Oberhellman, under section 16, article 3, Crimes and Punishments. The defendant was arraigned and plead not guilty. On the 6th day of February, 1850, defendant filed his motion to discharge, under section 25, article 6, of Practice and Proceedings in Criminal Cases; which motion was afterwards, on the 9th of February, 1850, overruled by the court. On the 12th February, 180, defendant filed his motion to quash the indictment: 1st. Because said indictment is indorsed burglary in the second degree, when in fact the same is for burglary in the third degree. 2nd. Because said indictment is in many other respects irregular, defective and uncertain; which motion was, on the 21st of February, 1850, overruled, and defendant went into trial; then the State proved that the house in question was the dwelling-house of Henry Oberhellman, that he had left it with his family some time before the burglary to avoid the cholera, with the intent of returning when the cholera should have abated--that he did return when the cholera abated and lived with his family in the same house--that defendant was seen, with another, going towards said house and afterwards seen in the house-- that he broke out a window through which to make his escape-- that he threatened to shoot those giving the alarm--that the kitchen window, which kitchen is adjoining to and under the same roof with the dwelling-house, was found raised--that the ketch or hasp of the door leading from the house to the kitchen was forced, so as to free the bolt from the hasp, and the door was open. That there was no one in the house but the defendant, and an accomplice at the time the defendant was in the house--that there was property in the house belonging to Henry Oberhellman--that the house was entered on Sunday, about 3 or 4 o'clock, at St. Louis county, last summer. Here the State closed, and the defendant offered in evidence a record and proceedings against Daniel Conner, in which said record he was charged with having burglariously entered the dwelling of Oberhellman, and showing that the State intended a le proqui in said cause, which was objected to by the State, and the court sustained the objection, and defendant excepted.

Defendant introduced some oral testimony, which it is deemed unnecessary to notice, and closed. Then asked the court to instruct the jury as follows: 1st. In order to convict the defendant on this indictment, the jury must b satisfied from the evidence that he did, in the day-time, break and enter into the dwelling-house of the said Henry Oberhellman, with the intent to commit some felony or larceny therein, by either one of the following methods: first, by forcibly bursting or breaking, or bursting the wall or some outer-door or shutter of a window of said house, or the lock or bolt of such door, or the fastening of such window or shutter; or, secondly, by breaking through in any other manner, being armed with some dangerous weapon, or with the assistance and aid of one or more confederates, then actually present, aiding and assisting; or, thirdly, by unlocking an outer-door by means of false keys, or by picking the lock thereof. 2nd. If the jury find the facts in this case to be that the defendant in the day-time entered said house through an open outer-door or window, or other aperture not made by the defendant, and while in said house, and in the day-time, broke open an inner-door thereof, and in the day-time broke out of said house by breaking an outer-door or window of the same, such facts do not authorize a conviction on this indictment, although the jury may believe that the entering of said house by the defendant was for the purpose of committing a felony or larceny. 3rd. There is no evidence before the jury to authorize a conviction on this indictment, and the jury will therefore acquit. Which instructions the court refused, and the defendant excepted.

The court then gave the following instructions: 1st. If the jury believe from the evidence that the defendant, in the county of St. Louis, and within three years before the finding of the indictment, did break and enter in the day-time, by breaking an inner-door of the dwelling-house of Henry Oberhellman, and that the defendant did so break and enter with the intent to commit a larceny, they will find the defendant guilty of burglary in the second degree, and assess the punishment by imprisonment in the penitentiary for a time not less than five nor more than ten years. 2nd. To convict the defendant of burglary, it is not necessary that he should have actually or personally broken into the house in question, but if he either broke in himself, or was in company with another, and the other broke into said house, and they both entered with the common intent and design to steal the property of Henry Oberhellman, this is burglary in both. 3rd. If Henry Oberhellman resided in the house in question when he was in St. Louis, but was temporarily absent with his family on account of the cholera or any other cause, and that he left said house with the intent to return to it and dwell therein, and that the defendant by himself or in company with another broke and entered said house during such temporary absence of said Oberhellman, then said house was in law the dwelling-house of said Henry Oberhellman, although no one lived in said house at the time of said breaking and entering. 4th. The jury having nothing to do with any former trial of this cause, nor any right to discharge under any statute; the only question for the consideration of the jury in this cause is, guilty or innocent of the crime mentioned in the indictment in this cause, and, if guilty, to assess the amount of punishment. 5th. If you entertain a reasonable doubt of the guilt of the accused, you ought to acquit. To which instructions defendant excepted. The jury found the defendant guilty, and assessed his punishment at five years' imprisonment in the penitentiary.

On the 25th of February, 1850, defendant filed his motion for a new trial, for the following reasons: 1st. Because the verdict is against law. 2nd. Because it is against the evidence in the case. 3rd. Because the court erred in refusing instructions asked by defendant. 4th. Because the court erred in its instructions to the jury.

The court overruled this motion and defendant excepted. On the same day defendant filed his motion in arrest of judgment, for the following reasons: 1st. Because the indictmeut is so insufficient, defective and uncertain that no legal judgment can be given thereon. 2nd. Because all the proceedings against the defendant are irregular, null and void. This motion was also overruled by the court, to which defendant excepted, and brings the cause here by appeal.

SIMMONS & BROWN, for Plaintiff. 1. The general uncertainty of the instructions is such that the defendant cannot tell with what degree of burglary he is charged, or upon what law the indictment is founded. The averments are so general as to time, place and manner that the party could not know how to defend himself. Dameron v. State, 8 Mo. R. 495. 2. That an indictment for burglary, which charges breaking, must specify the manner and the circumstances of so doing, otherwise there would be no force in the exemption provided by section 22, Crimes and Punishments, p. 357, statute. 3. That the different manners of breaking constitute, by the statute law, the different degrees of the offense of burglary; and, that consequently where no manner is specified, no degree is, nor can be charged. 4. That the sections which make the breaking into a house in the day-time burglary, are section 14, in which the manner must be alleged to be one of the three kinds specified in section 13; section 16, which requires that there should be also a breaking out in the night-time; section 21, which makes the offense there embrace burglary in the third degree, which is not the verdict found in this case. The indictment does not answer to either of these sections and should therefore have been quashed. 5. That in offenses by burglary, the method and time are essential qualities; and when either is omitted, the indictment is voidable. The defendant also complains, that the court erred in overruling the motion in arrest of judgment, for the following reasons: 1st. The State informed the defendant, and urged upon the court, and still contends that the indictment is based upon the 16th section of the statute relative to Crimes and Punishments (to which section particular attention is prayed), but this section merely provides that “where one enters in the day-time and breaks out at night,” he shall be guilty of burglary in the second degree. The State contends, and the court below so decided, that the latter clause of section 16, relative to breaking out in the night-time, does not apply to the first clause of the same section, which speaks of “every person who shall enter into the dwelling-house of another by day or night,” but merely one “being in the dwelling-house of another;” in other words, that “““every person who shall enter into the dwelling-house of another by day or night, in such a manner as not to constitute any burglary as hereinbefore specified, with intent to commit a felony or other larceny,” is guilty of burglary in the second degree. This construction certainly will not bear examination, as the offense of burglary would not then differ in the least from the offense of larceny. The defendant, on the other hand, contends that the clause referring to breaking out in the night-time refers to both the alternatives, and that this being the case the indictment cannot rest upon this section, and therefore the motion in arrest of judgment should have...