State v. Babb

• Citation: 76 Mo. 501
• Parties: THE STATE v. BABB, Appellant.
• Decision Date: 31 October 1882
• Court: Missouri Supreme Court

76 Mo. 501

THE STATE

v.BABB, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

REVERSED.

William C. Babb was indicted for burglary in the second degree and larceny. The charge was for breaking into the store of J. Bymaster, in Greene county, on the 30th day of October, 1879, by forcibly removing a plank which covered a broken pane of glass, and in which store, it was averred, there were deposited and kept for sale, divers goods, wares and merchandise, and other valuable property of said John Bymaster, with intent to steal the goods, etc., thus kept in said store, and also that he did then and there feloniously and burglariously take, steal and carry away certain goods, chattels, etc., (naming each article and its value,) and other valuable things of said John Bymaster in said store. The indictment was found by a special grand jury on the 6th day of January, 1880. Defendant was tried on the 9th and found guilty of burglary, as charged in the indictment, and his punishment assessed at imprisonment in the penitentiary for a period of five years. His motions for a new trial and in arrest, were overruled, and exceptions taken, and sentence passed, from which he regularly appealed--but he has been confined in said penitentiary under said sentence ever since it was rendered--three years.

There was no evidence that either offense charged was committed in Greene county. Nor does it anywhere appear in the bill of exceptions or in any part of the record, that the store in which the burglary and larceny were charged to have been committed, is situated in that county. After the prosecuting witness had said in reply to a question put by defendant's attorney, “I don't know that any of the property was ever mine,” the court asked the witness, “From everything you know in relation to the case of your own personal knowledge, state to the jury whether you believe these goods shown to you to be yours,” to which the witness, against the objections of defendant's counsel, replied, “I believe them to be my goods,” without stating any grounds upon which his belief was founded.

F. P. Wright for appellant.

D. H. McIntyre, Attorney General, for the State.

I.

SHERWOOD, J.

As it does not appear from the record that any venue was proven, the judgment will not be allowed to stand. State v. McGinniss, 74 Mo. 245; State v. Burgess, 75 Mo. 541.

II.

The first instruction given on behalf of the State is faulty in two particulars: in telling the jury that defendant could be found guilty of larceny if he “feloniously took, etc., any of the goods, wares and merchandise then in said store.” The defendant was only punishable on that trial, on account of such goods, etc., as were charged in the indictment and proven to have been stolen. State v. McGraw, 74 Mo. 573; and in telling the jury that defendant was guilty of larceny, if he “feloniously stole, took or carried away any of the goods,” etc. The jury might well have inferred that a felonious caption of the goods was unnecessary to constitute the offense of larceny. And the instruction should have defined the offense of burglary and also that of larceny.

III.

The instruction as to the recent possession of stolen property was properly given. State v. Kelly, 73 Mo. 608; State v. Williams, 54 Mo. 170. And the presumption which the law raises as to recent guilty possession is not confined to theft, nor to any class or species of felony, but is applied even in cases where the highest penalties are inflicted--as in a case of arson, where property which was in the house when the arson occurred was soon afterward found in the possession of the prisoner; Pickman's case, 2 East P. C. 1035; 1 Greenleaf Ev., § 34; 3 Ib., § 57; and in cases of burglary and larceny. State v. Brewster, 7 Vt. 122. And in this case we regard the possession of the property as sufficiently recent to amount to what is termed ““guilty possession.” The breaking and larceny were proven to have occurred on the 30th day of October, and on the 2nd day of December, 1879--and shortly after each of such breakings, articles such as the owner had in his store were found in defendant's possession.

IV.

And we regard the identity of the goods as having been sufficiently established. The...